Arsiya Bano vs State Of U.P. And 3 Ors.
2022 Latest Caselaw 7870 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

RESERVED
 
A.F.R.
 
Court No. - 81
 
Case :- WRIT - A No. - 481 of 2021
 
Petitioner :- Arsiya Bano
 
Respondent :- State Of U.P. And 3 Ors.
 
Counsel for Petitioner :- Anand Prakash Pandey,Prabhakar Awasthi
 
Counsel for Respondent :- C.S.C.,Archana Singh
 
Connected with
 
Case :- WRIT - A No. - 482 of 2021
 
Petitioner :- Km. Abhishek Upadhayay
 
Respondent :- State Of U.P. And 3 Ors.
 
Counsel for Petitioner :- Anand Prakash Pandey,Prabhakar Awasthi
 
Counsel for Respondent :- C.S.C.,Archana Singh
 
Connected with
 
Case :- WRIT - A No. - 484 of 2021
 
Petitioner :- Jyoti Yadav
 
Respondent :- State Of U.P. And 3 Ors.
 
Counsel for Petitioner :- Anand Prakash Pandey,Prabhakar Awasthi
 
Counsel for Respondent :- C.S.C.,Archana Singh
 
Connected with
 
Case :- WRIT - A No. - 486 of 2021
 
Petitioner :- Yogesh Kumar
 
Respondent :- State Of U.P. And 3 Ors.
 
Counsel for Petitioner :- Anand Prakash Pandey,Prabhakar Awasthi
 
Counsel for Respondent :- C.S.C.,Archana Singh
 
Connected with
 
Case :- WRIT - A No. - 487 of 2021
 
Petitioner :- Anita Singh
 
Respondent :- State Of U.P. And 3 Ors.
 
Counsel for Petitioner :- Anand Prakash Pandey,Prabhakar Awasthi
 
Counsel for Respondent :- C.S.C.,Archana Singh
 
Connected with
 
Case :- WRIT - A No. - 491 of 2021
 
Petitioner :- Deepak Kumar
 
Respondent :- State Of U.P. And 3 Ors.
 
Counsel for Petitioner :- Anand Prakash Pandey,Prabhakar Awasthi
 
Counsel for Respondent :- C.S.C.,Archana Singh
 

 
Hon'ble Mrs. Manju Rani Chauhan,J.

1. Heard Mr. Prabhakar Awasthi and Mr. Anand Prakash Pandey, learned counsel for the petitioner, Ms. Archana Singh, learned counsel for the respondent-Basic Education Board, U.P. Prayagraj through its Secretary and Mr. Shailendra Singh, learned Standing Counsel for the State-respondents in the above writ petitions.

2. Writ- A No. 481 of 2021 has been filed by the petitioner with a prayer to issue a direction upon the respondents to forthwith allocate 1 mark each for Question nos. 116 and 146 after re-evaluating Booklet Series-'C' qua the petitioner and thereafter may appoint the petitioner on the post of Assistant Teacher.

By means of Writ-A No. 482 of 2021, the petitioner has prayed for a direction upon the respondents to forthwith allocate 1 mark each for Question Nos. 3, 35, 70 and 126 after re-evaluating Booklet Series-'A' qua the petitioner and thereafter may appoint the petitioner on the post of Assistant Teacher.

Writ-A No. 484 has been filed for a direction upon the respondents to forthwith allocate one mark, which has been wrongly deducted pursuant to an order of a Writ Court dated 22nd October, 2019 passed in Writ-A No. 4235 of 2019 (Jyoti Yadav Vs. State of u.P. & Others) along with Writ-A no. 6420 of 2019 (Narendra Kumar Chaturvedi Vs. State of U.P. & Others) and may also allocate one mark in respect of Question No. 21 and thereafter may appoint the petitioner on the post of Assistant Teacher.

In Writ-A No. 486 of 2021, it has been prayed by the petitioner that the respondents be directed to forthwith allocate 1 mark each for Question Nos. 34 and 50 after re-evaluating Booklet Series-'C' qua the petitioner and thereafter may appoint the petitioner on the post of Assistant Teacher.

By Writ-A No. 487 of 2021, a writ of mandamus has been prayed by the petitioner directing the respondents to forthwith select the petitioner after allocating marks to Question Nos. 76 and 79 in relation to Assistant Teacher Recruitment Examination-2018 within stipulated period of time as this Court may desire and deem fit in the interest of justice.

Writ-A No. 491 has been filed by the petitioner for a direction upon the respondents to forthwith allocate 1 mark each for Question Nos. 18 and 133 after re-evaluating Booklet Series-'A' qua the petitioner and thereafter may appoint the petitioner on the post of Assistant Teacher.

3. As the rudimentary realities and the permissible facets intricate are indistinguishable in this bunch of the writ petitions, they have been amalgamated and heard together and are being decided by this conjoint verdict. The particulars chronicled in Writ- A No.- 481 of 2021 (Arsiya Bano Vs. State Of U.P. And 3 Ors.) are being canned to be the leading case.

4. According to the petitioners, the realistic milieu of the case is as follows:-

The State of Uttar Pradesh, by making 20th amendment in the Uttar Pradesh Basic Education (Teachers) Service Rules, 1981, fixed a criteria for making appointments of Assistant Teachers in Primary Schools run and controlled by the U.P. Basic Basic Education Baord, Prayagraj/Allahabad. Pursuant to the said amendment, a letter has been issued by the State inviting online applications from the prospective candidates for appointment on the post of Assistant Teachers in Primary Schools against total 68,500 posts for which the State also proposed to conduct Assistant Teachers Recruitment Examination-2018.

As per the provisions contained in the guidelines so issued, initially the cut off marks i.e. minimum qualifying marks was fixed at 45% for General and Other Backward Class category and 40% marks fixed for Scheduled Caste Category. The total marks of the Entrance Examination is 150 for which 150 questions provided in written examination so conducted by the State of Uttar Pradesh and on calculating 45% marks of which will be 67 marks and 40% marks will be 60 marks. As the petitioners possessed the degrees of Graduation and B.T.C. and also cleared T.E.T. examination, therefore, they were fully eligible to be appointed as Assistant Teacher in primary schools and also entitled to appear in Recruitment Examination-2018. The petitioner in leading case applied for appearing in Assistant Teachers Recruitment Examination-2018 by depositing the requisite fee and was also registered as a candidate having Registration No. 3500028774 and allotted Roll No. 35351808887. Pursuant thereof, the petitioner appeared in Assistant Teacher Recruitment Examination-2018 on 27th May, 2018, wherein he was provided Booklet Series "C". In the said recruitment examination, there were four series of booklets consisting of 150 questions, which were marked as "A", "B", "C", & "D". After the said recruitment examination, a model booklet answer key of Booklet Series "C" was duly published by the Secretary, Examination Regulatory Authority, U.P. Prayagraj, i.e. respondent no.4 on the concerned website on 5th June, 2018 and further a revised model booklet answer key of Booklet Series "C" was published on 18th June, 2018 by respondent no.4. The results of Assistant Teachers Recruitment Examination-2018 was declared by respondent no.4 on the concerned website on 13th August, 2018 and against total 68,500 posts, only 41,556 candidates were declared successful, as they secured minimum eligibility cut off marks, which was fixed as 45% for General and Other Backward Class Category candidates and 40% for Scheduled Caste Category candidates i.e. 67 marks for General/OBC candidates and 60 marks for SC candidates. When the result was declared, the petitioner has obtained 63 marks.

For ensuring transparency in the result so declared against the Assistant Teacher Recruitment Examination-2018, a Government Order dated 5th October, 2018 was issued, whereby the candidates, who were not satisfied with the result so declared, were directed to apply online between 11th October, 2018 to 20th October, 2018 for re-evaluation of the answer-key. Pursuant to the said Government Order, an advertisement dated 10th October, 2018 was issued for re-evaluation of the answer-key. Accordingly, the petitioner filled online form for re-evaluation. After filling the form for re-evaluation, the result was declared on 17th February, 2019 and the total marks of the petitioner have been increased by two more marks i.e. 63+2=65 marks, whereas qualifying marks, as fixed by respondent no.4 for the General/Other Backward Class Category candidates, is 67 marks. For question no. 10 of Booklet Series "C" which was provided to her, a litigation was pending before the Apex Court and upon intervention of the Apex Court, one mark each was given to all the candidates, therefore, total marks of the petitioner was swelled to 66 marks. Against the re-evaluated result, so declared on 17th February, 2019, various writ petitions were filed before this Court for subsequent re-evaluation. The petitioner also filed Writ-A No. 10620 of 2019. This writ petition was clubbed with Writ-A No. 6420 of 2019 (Narendra Kumar Chaturvedi VS. State of U.P. & Others), which was the leading petition. This bunch of writ petitions were disposed by a Writ Court vide common judgment and order dated 22nd October, 2019 with a direction upon the respondents to conduct the re-evaluation in light of the judgment dated 30th October, 2018 passed in Writ-A No. 18235 of 2018 (Aniruddh Narayan Shukla & 118 others VS. State of U.P. & Others). Pursuant to the above order of the Writ Court dated 22nd October, 2019, the answer-keys of the prospective candidates were re-evaluated, after which the result was declared on 18th September, 2020, wherein the petitioner was awarded 66 marks, which was less than the qualifying cut off marks i.e. 67 marks in General/Other Backward Class Category. Not being satisfied with the said re-evaluation, the petitioner again approached this Court by means of present leading writ petition for re-evaluating Question Nos.116 and 146 of "C" booklet series which was provided to the petitioner.

5. Submissions made on behalf of petitioner in each writ petition of the aforesaid bunch are as follows:-

(I) So far as the case of petitioner of leading writ petition i.e. Writ-A No. 481 of 2022 is concerned, learned counsel for the petitioner submits that pursuant to the order of the Writ Court dated 22nd October, 2019, re-evaluation was done but the marks to the answers given by the petitioner against question nos. 116 and 146, have not been given to her. In the said factual background, the petitioner would refer Question No.116 which reads as under:-

"शारदा अधिनियम का सम्बन्ध किससे है?"

The answer given by the petitioner is ''विवाह', whereas the answer as per the answer sheet is ''बाल विवाह Child Marriage Restraint Act 1929/युवकों की 18 एवं महिलाओं की 14 वर्ष में विवाह/विवाह की उम्र/विवाह की न्यूनतम आयु से सम्बन्धित/लड़के एवं लड़कियों के विवाह की निश्चित आयु से सम्बन्धित/ महिला विवाह/ विवाह आयु से'.

Now petitioner would like to refer Question No.146, which is quoted herein below:-

"''व्यास सम्मान,2017' के लिए किसे चुना गया है?".

The answer given by the petitioner is ''ममता', whereas the answer in the answer sheet is ''ममता कालिया'.

Learned counsel for the petitioners, therefore, submits that the answer given by the petitioner is nearly the same which has been given in the answer-sheet, hence, the marks for those questions should be given to the petitioner.

(II) In respect of the case of petitioner in Writ-A No. 482 of 2021, learned counsel for the petitioners submits that on the basis of aforesaid order of the Writ Court, the re-evaluation was done but no marks were awarded to the petitioner. In support of his case, the petitioner would like to reproduce Question No.3 which reads as under:-

"चौराहा में कौन सा समास है?'.

The answer given by the petitioner is ''द्विगु समास/तत्पुरुष समास', whereas the answer as per the answer sheet is ''द्विगुसमास'.

Similarly, the petitioner would like to refer Question No.35 which is set-out hereinbelow:-

"''पठनीयः पद में कौन-सा प्रत्यय है?".

To the said question, the answer given by the petitioner is ''अनीयर प्रत्यय/अनीय', whereas the answer in the answer sheet is ''द्विगुसमास अनीयर'.

The petitioner would also like to refer Question No.70 which is set- out hereinbelow:-

"10. से०मी० त्रिज्या वाले एक वृत की एक जीवा की लम्बाई 16 से०मी० है। वृत के केंन्द्र से जीवा की दूरी ज्ञात कीजिए।".

To the said question, the answer given by the petitioner is ''6 सेंमी या 6 cm', whereas the answer given in the answer sheet is ''6'.

Lastly, the petitioner refers Question No. 126, which is being quoted herein-below:-

"वर्ष 1893 में किस शहर में स्वामी विवेकानन्द ने भारत के प्रतिनिधि के रूप में विश्व धर्म संसद में प्रेरणादायक भाषण दिया?".

To the said question, the petitioner has given his answer as ''शिकागो', whereas the answer as per the answer sheet is ''शिकागो मे'.

Learned counsel for the petitioner, therefore, submits that on the basis of aforesaid factual background, the petitioner ought to have been accorded one mark each for Question Nos. 3, 35, 70 and 126.

(III) Qua the case of the petitioner in Writ-A No. 484 of 2022, learned counsel for the petitioner submits that in compliance of the order of the Writ Court as mentioned herein above, the re-evaluation of the booklet series provided to him, was done but no marks were accorded to the petitioner. In support of his submission, learned counsel for the petitioner reproduces Question No.21, which reads as follows:-

"व्यूह का विलोम शब्द क्या है?".

Against the said question, the answer given by the petitioner is ''निर्व्यूह/अव्यूह', whereas the answer as per the answer sheet is ''आव्यूह'.

Learned counsel for the petitioners, therefore, submits that as the answer given by the petitioner is nearly the same to the answer mentioned in the answer-sheet, hence, the marks should have been given to the petitioners in the interest of substantial justice.

(IV) As regards, the case of the petitioner in Writ-A No. 486 of 2022, learned counsel for the petitioner submits that pursuant to the order of the Writ Court as referred to above, the re-evaluation of the booklet series provided to the petitioner, was done but no marks were accorded to the petitioner for Question Nos. 34 and 50. In support of his submission, learned counsel for the petitioner refers to Question No.34, which reads as follows:-

"प्रत्येकम् पद में कौन-सा उपसर्ग प्रयुक्त है?".

For the said question, the answer given by the petitioner is ''प्रति'.

He also refers to Question No. 50, which is being quoted herein-below:-

"एक जीव की संरचना, कार्य या व्यवहार वातावरण के अनुरुप परिवर्तन कहलाता हैः-".

The answer given by the petitioner to the same is ''अनुकूलन/Adaptation', whereas, the answer is the answer sheet is ''अडप्टेशन'.

Learned counsel for the petitioner, therefore, submits that as the answers given by the petitioner for the aforesaid questions are the same as mentioned in the answer-sheet, therefore, the marks to the aforesaid questions should be given to the petitioner in the interest of substantial justice.

(V) Insofar as it relates to the case of the petitioner in Writ-A No. 487 of 2022, learned counsel for the petitioner submits that though the re-evaluation pursuant to the aforesaid order of the Writ Court was done, but no marks have been given to the petitioner for Question Nos. 76 and 79. For ready reference, Question No. 76 reads as follows:-

"कौन सा अभिलेख छात्रों की योग्यता, रूचि, क्षमताओं एवं प्रतिक्रियाओं की जाँच करने हेतु रखा जाता है?".

Learned counsel for the petitioner further submits that the answer for the aforesaid question given by the petitioner is ''छात्र अभिलेख', whereas, the answer as per the answer sheet is ''संचयी अभिलेख/ उपाख्यानात्मक (एनेक्डोटल) अभिलेख/ छात्र प्रोफाइल/ छात्र प्रगति अभिलेख/ संचित अभिलेख/पोर्टफोलियो'.

Similarly, learned counsel for the petitioner would like to refer Question No.79 which is quoted as under:-

"यदि आप कक्षा में ज्यादा छात्रों की प्रतिभागिता चाहते हैं तो आप शिक्षण की कौन सी विधि का चुनाव करेंगे?".

The answer given by the petitioner is छात्र सहभागिता विधि', whereas the answer given in the answer-sheet is ''विचार-विमर्श/सहकारी/वाद-विवाद/सहभागी शिक्षण/ समूह चर्चा/ रूचि पूर्ण समूह चर्चा'.

Learned counsel for the petitioner, therefore, submits that the answer given by the petitioner is nearly the same which has been given in the answer-sheet, hence, the marks for those questions should be given to the petitioner.

(VI) With respect to the case of the petitioner in Writ-A No. 491 of 2022, learned counsel for the petitioner submits that the petitioner has given right answers to question nos. 18 and 133 but after re-evaluation, no marks have been given to him. For justifying his answer, the petitioner wants to refer Question No.18 which reads as under:-

"लिखावट' शब्द में किस प्रकार का प्रत्यय है?".

Learned counsel for the petitioner further submits that the answer given by the petitioner is ''कृत् प्रत्यय/ आवट/ वट', whereas, the answer disclosed in the answer sheet is ''आवट् प्रत्यय'. Similarly, learned counsel for the petitioner refers to Question No. 133 which is quoted herein-below:

"क्षेणी 4M,9K,16I,25G,........? का अगला पद ज्ञात कीजिए।".

The answer given by the petitioner is ''36E', whereas, answer mentioned in the answer-sheet is ''36E'. Learned counsel for the petitioner, therefore, submits that as the answers given by the petitioner for the aforesaid questions are the same as mentioned in the answer-sheet, therefore, the marks to the aforesaid questions should be given to the petitioner in the interest of substantial justice.

6. On the cumulative strength of the aforesaid eventualities, learned counsel for the petitioner submits that the petitioner of all the writ petitions should have been awarded marks towards the respective questions strictly in terms of the judgment rendered in the case of Aniruddh Narayan Shukla and in that event, petitioner would secure the cut off marks as required, in all eventuality, petitioner of all the writ petitions would have been selected. Hence, a direction be issued to the respondent authorities to award marks as aforesaid so that the petitioners of their respective petitions may be declared successful and be selected on the post in question.

7. Controverting the submissions made by the learned counsel for the petitioner, Mr. Shailendra Singh, learned Standing Counsel for the State-respondents submits as follows:-

a) The relief prayed by the petitioner in Writ-A No. 481 of 2022 cannot be granted by this Court, as the re-evaluation of answers given by the petitioner in Booklet Series "C" which was provided to him, have been done twice and for question nos. 116 and 146, he has not been awarded marks, as he had given incomplete/incorrect answer to the same. To question no. 116, the petitioner gave answer as " विवाह", whereas the correct answer of the same is " बाल विवाह". Similarly, to question no. 146, the petitioner had given answer as " ममता", whereas the correct answer to the same is " ममता कालिया". Learned Standing Counsel, therefore, submits that there is no illegality or infirmity in the re-evaluation done in the case of the petitioner.

b) With regard to the petitioner in Writ-A No. 491 of 2022 for re-evaluation of question nos. 18 and 133 of Booklet Series "A" which was provided to the petitioner, learned Standing Counsel for the State-respondents submits that for question no.133, marks have already been awarded, whereas for question no.18, the petitioner has not been awarded mark as he has given incorrect/incomplete answer. Qua question no.18, as per the re-evaluated answer-key published on 18th September, 2020, the correct answer to the same is "कृत प्रत्यय/आवत/वत", whereas the petitioner has given the answer as "आवत प्रत्यय". Learned Standing Counsel therefore, submits that the relief as prayed in the writ petition cannot be granted. In support of the said plea, the learned Standing Counsel has placed reliance upon a judgment of this Court dated 25th January, 2021 passed in Writ-A No. 10393 of 2020 (Gargi Singh Vs. State of U.P. & Others), wherein similar dispute qua incorrect/incomplete answer, was involved. The said writ petition was dismissed by a Writ Court while recording a finding that as there were major spelling error in answer to question no.21, which was related to language and the spelling errors were relevant, the examining body has correctly marked the said answer as "wrong".

c) To the prayer made in Writ-A No. 482 of 2022 for re-evaluation of question nos. 3, 35, 70 and 126 of Booklet Series which was provided to the petitioner, learned Standing Counsel for the State-respondents submits that the marks have already been awarded to the petitioner after re-evaluation, therefore, this prayer has no leg to stand. Even otherwise, pursuant to the Government Order dated 5th October, 2018 and advertisement dated 10th October, 2018, the petitioner had not made online application for re-evaluation of which the result was declared on 17th February, 2019.

d) Qua the submissions made by the learned counsel for the petitioner in respect of Writ-A No. 487 of 2022 for re-evaluation of question nos. 76 and 79 of Booklet Series "C" which was provided to the petitioner, learned Standing Counsel for the State-respondents submits that against the said questions, the petitioner has given incorrect/incomplete answer. As per the re-evaluated answer-key published on 18th September, 2020, the correct answer to Question No. 76 is "संचयी अभीलेख/उपख्यानतमक (अनेकद्योतल) अभीलेख/ छात्र प्रोफाइल/छात्र प्रगति अभिलेख/संचित अभिलेख/पोर्टफोलियो, whereas the petitioner has given the answer as " छात्र अभीलेख". Similarly, the correct answer to question no.79 is "विचार-विमर्ष/सहकारी/वाद-विवाद/सहभागी शिक्षण/समुह चर्चा/रुचिपूर्ण सामूहिक शिक्षा, whereas the petitioner has given the answer as " छात्र सहभागिता विधि". Therefore, he has not been awarded marks to the said questions and controversy has been settled in favour of respondents by a Writ Court in the case of Gargi Singh (Supra).

e) So far as prayer made in Writ-A No. 484 of 2022 for re-evaluation of question no. 21 of Booklet Series "B", which was provided to the petitioner, is concerned, learned Standing Counsel for the State-respondents submits that as per the re-evaluated answer-key published on 18th September, 2020, the correct answer to Question No. 21 is "निव्यूह/आव्यूह" of which the petitioner has given answer as " आव्यूह" which is also incomplete/incorrect answer, therefore, petitioner has not been awarded marks for the same.

f) To the prayer made in Writ-A No. 486 of 2022 for re-evaluation of question nos. 34 and 50 of Booklet Series "A" which was provided to the petitioner, learned Standing Counsel for the State-respondents submits that the marks have already been awarded to the petitioner after re-evaluation, therefore, this prayer has no leg to stand. Learned Standing Counsel for the State-respondents, therefore, submits that this petition is wholly misconceived and is liable to be dismissed.

Even otherwise, to the submissions made by the learned counsel for the petitioner for re-evaluation of answer-sheets of the petitioner in all the writ petitions, which were in form of Booklet Series "A", "B", "C" respectively, Mr. Shailendra Singh, learned Standing Counsel for the State-respondents submits that there is no provision of re-evaluation of answer-sheets thrice and it would not be out of place to mention that the answer-sheets of the petitioners have already been re-evaluated twice.

Apart from the above, Mr. Shailendra Singh, learned Standing Counsel has also raised preliminary objection to the maintainability of all the writ petitions by contending that the petitioners of their respective petitions have earlier approached this Court by means of Writ-A No.10620 of 2019, Writ A-No. 13024 of 2019, Writ-A No. 4235 of 2019, Writ-A No. 13333 of 2019, Writ-A No. 4166 of 2019 and Writ-A No. 6959 of 2019 respectively. All these writ petitions have been clubbed with Writ Petition No. 6420 of 2019 and the same have been disposed off by means of a common judgment and order dated 22nd October, 2019, whereby the Secretary, examination Regulatory Authority, U.P. Allahabad was directed to conduct the re-evaluation of the answer-sheets of petitioners of all the writ petitions. Learned counsel for the State-respondents, therefore, submits that this second writ petition nearly for the same relief i.e. for re-evaluation cannot be entertained by this Court and the same is liable to be dismissed on this ground alone. The proper remedy available to the petitioner is to file a recall/modification application in the said writ petition or file a special appeal against the order passed therein.

On the cumulative strength of the aforesaid, learned Standing Counsel for the State-respondents submits that all these writ petitions are not maintainable and the same are liable to be dismissed.

8. I have considered the submissions made by Mr. Awasthi, learned counsel for the petitioner and Mr. Singh, learned Standing Counsel for the State-respondents in all the writ petitions.

9. Learned Counsel for the petitioner has not brought to this Court's attention any rules, regulation or any guidelines framed by the respondent, notification or circular, bulletin issued by the respondent or any authority of law that may permit re-evaluation time and again.

Contrarily, it is an admitted position that re-evaluation of respective Booklet Series provided to the petitioners in all the writ petitions has been done twice.

10. The issue of re-evaluation of answer book or sheet is no more res integra. This issue has been considered by the Apex Court in the case of Maharashtra State Board of Secondary and Higher Secondary Education & Anr. Vs. Paritosh Bhupesh Kurmarsheth & Ors., reported in AIR 1984 SC 1543, wherein the Apex Court rejected the contention that in absence of provision for re-evaluation, a direction to this effect can be issued by the Court. The Apex Court further held that even the policy decision incorporated in the Rules/Regulations providing for rechecking/ verification/re-evaluation cannot be challenged unless there are grounds to show that the policy itself is in violation of some statutory provision. The Apex Court held as under:-

"In our opinion, this approach made by the High Court was not correct or proper because the question whether a particular piece of delegated legislation - whether a rule or regulation or other type of statutory instrument - is in excess of the power of subordinate legislation conferred on the delegate as to be determined with reference only to the specific provisions contained in the relevant statute conferring the power to make the rule, regulation, etc. and also the object and purpose of the Act as can be gathered from the various provisions of the enactment. It would be wholly wrong for the court to substitute its own opinion for that of the legislature or its delegate as to what principle or policy would best serve the objects and purposes of the Act and to sit in judgment over the wisdom and effectiveness or otherwise of the policy laid down by the regulation-making body and declare a regulation to be ultra vires merely on the ground that, in the view of the Court, the impugned provisions will not help to serve the object and purpose of the Act. So long as the body entrusted with the task of framing the rules or regulations acts within the scope of the authority conferred on it, in the sense that the rules or regulations made by it have a rational nexus with the object and purpose of the Statute, the court should not concern itself with the wisdom or efficaciousness of such rules or regulations. 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. It is not for the Court to examine the merits or demerits of such a policy because its scrutiny has to be limited to the question as to whether the impugned regulations fall within the scope of the regulation-making power conferred on the delegate by the Statute.

In our opinion, the aforesaid approach made by the High Court is wholly incorrect and fallacious. 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 for revision and improvement. But any draw-backs in the policy incorporated in a rule or regulation will 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 prudent policy, but is even a foolish one, and that it will not really serve to effectuate the purposes of the Act. The legislature and its delegate are the sole repositories of the power to decide what policy should be pursued in relation to matters covered by the Act and there is no scope for interference by the Court unless the particular provision impugned before it can be said to suffer from any legal infirmity in the sense of its being wholly beyond the scope of the regulation-making power or its being inconsistent with any of the provisions of the parent enactment or in violation of any of the limitations imposed by the Constitution."

11. This view referred to above has been approved, relied upon and reiterated by the Apex Court in the case of Pramod Kumar Srivastava Vs. Chairman, Bihar Public Service Commission, Patna & Ors, reported in J.T. 2004 SC 380 observing as under:

"Under the relevant rules of the Commission, there is no provision wherein a candidate may be entitled to ask for re-evaluation of his answer-book. There is a provision for scrutiny only wherein the answer-books are seen for the purpose of checking whether all the answers given by a candidate have been examined and whether there has been any mistake in the totalling of marks of each question and nothing them correctly on the first cover page of the answer-book. There is no dispute that after scrutiny no mistake was found in the marks awarded to the appellant in the General Science paper. In the absence of any provision for re-evaluation of answer-books in the relevant rules, no candidate in an examination has got any right whatsoever to claim or ask for re-evaluation of his marks."

12. This Court feels that sympathy or compassion does not play any role in the matter of directing or not directing re-evaluation of an answer sheets. The law is well settled that the burden is on the candidates, not only to demonstrate that the key answer is incorrect but also to show that it is a glaring mistake which is totally apparent and no inferential process or reasoning is required to show that the key answer is wrong. The Constitutional Courts must exercise great restrain in such matters and should be reluctant to entertain a plea challenging the correctness of the key answers. The Court should not over step its jurisdiction by giving the directions for re-evaluation which would amount to judicially reviewing the decision of the expert in the field.

13. The legal position in this respect has been summarised in case of Ran Vijay Singh and Ors. Vs. State of U.P. and Ors., reported in (2018) 2 SCC 357 which is follows:-

"30. The law on the subject is therefore, quite clear and we only propose to highlight a few significant conclusions. They are:

30.1. If a statute, Rule or Regulation governing an examination permits the re-evaluation of an answer sheet or scrutiny of an answer sheet as a matter of right, then the authority conducting the examination may permit it;

30.2. If a statute, Rule or Regulation governing an examination does not permit re-evaluation or scrutiny of an answer sheet (as distinct from prohibiting it) then the court may permit re-evaluation or scrutiny only if it is demonstrated very clearly, without any "inferential process of reasoning or by a process of rationalisation" and only in rare or exceptional cases that a material error has been committed;

30.3. The court should not at all re-evaluate or scrutinise the answer sheets of a candidate--it has no expertise in the matter and academic matters are best left to academics;

30.4. The court should presume the correctness of the key answers and proceed on that assumption; and

30.5. In the event of a doubt, the benefit should go to the examination authority rather than to the candidate."

14. Undoubtedly, the Courts cannot judicially review the expert opinion unless and until the key answer is patently wrong. There is no doubt that the candidates put in dreadful efforts while preparing for an examination, it must not be unremembered that even the examination authorities as well as experts put in equally great efforts to successfully conduct the examination, therefore the Court must consider the internal checks and balances put in place by the examination authorities before interfering with the efforts put in by the candidates who have successfully participated in the examination and the examination authorities.

15. Therefore, the Court should restrain in interfering with the efforts put in by the candidates as well as the examination authorities unless and until the mistake is apparent on the face of record and no research has to be done in proving the same, as the same will be an unending process resulting in uncertainty and confusion.

16. Keeping in mind the aforesaid, the Court in case of U.P.P.S.C. and Ors. Vs. Rahul Singh and Ors. reported in AIR 2018 SC 2861 has observed as follows:-

"Unless the candidate demonstrate that the key answers are patently wrong on the fact of it, the Courts cannot enter into the academic field, weigh the pros cons of the arguments given by both sides and then come to the conclusion as to which of the answer is better or more correct."

17. Indubitably, conducting and holding of examinations in a most fitting and fair manner is peremptory and is solemn duty of examining body to provide for fair procedure, rules, regulations or bye-laws, keeping in mind that the career and fate of the students depends upon the result of the examinations.

18. A Constitution Bench of the Apex Court in the case of University of Mysore Vs. C.D. Govinda Rao & Anr., reported in AIR 1965 SC 491, has held that where the decision under challenge has been taken by the Committee of Expert, "normally the Courts should be slow to interfere with the opinion expressed by the experts" unless there are allegations of mala fide against any of the Members of the Expert Committee. The Court further observed as under:-

"........It would normally be wise and safe for the Courts to leave the decisions of academic matters to experts who are more familiar with the problems they face than Courts........"

19. It is settled law that when a decision is taken by the Committee of Expert having high academic qualifications and long experience in the specialised field, the Courts should not normally interfere in the matters unless there are compelling circumstances for doing so.

20. The aforesaid issue is also well settled in view of the judgement of Apex Court in case of Bihar Staff Selection Commission Vs. Arun Kumar, reported in (2020) 6 SCC 362. There are otherwise catena of judgements of Supreme Court holding that in the competitive selection test, prayer for re-evaluation of marks cannot be accepted unless a rule for it exists.

21. Taking into consideration the settled position of law in the matters where the answer key is disputed, this Court in case of Jitendra Singh Vs. Union of India and Another, passed in Writ C No. 53877 of 2017, has held that the Court has to proceed on the assumption and presumption that the answer key is correct as the same is based on experts opinion given by the persons specialised. In the event of any doubt, benefit should go to the examination authority rather than to the candidate. It is with a rider that the Court should not re-evaluate or scrutinize the answer sheets of the candidates as it has no expertise in the matter, the academic matters are best left to the academicians there being no scope of judicial review in the matter.

22. Appropriately, considering the capitulations made by Mr. Shailendra Singh, learned Standing Counsel for the State-respondents and law laid down by the Apex Court, established position of law, this Court finds no good ground to interfere in this bunch of writ petitions and the same are liable to be dismissed.

23. Apart from the above, learned Standing Counsel has also raised preliminary objection to the maintainability of all the writ petitions by contending that the petitioners of their respective petitions have earlier approached this Court by means of Writ-A No.10620 of 2019, Writ A-No. 13024 of 2019, Writ-A No. 4235 of 2019, Writ-A No. 13333 of 2019, Writ-A No. 4166 of 2019 and Writ-A No. 6959 of 2019 respectively. All these writ petitions have been clubbed with Writ Petition No. 6420 of 2019 and the same have been disposed off by means of a common judgment and order dated 22nd October, 2019, whereby the Secretary, examination Regulatory Authority, U.P. Allahabad was directed to conduct the re-evaluation of the petitioners of all the writ petitions. Learned counsel for the State-respondents, therefore, submits that these writ petitions being second nearly for the same relief i.e. for re-evaluation cannot be entertained by this Court and the same are liable to be dismissed on this ground alone.

24. It is an admitted position between the parties that for the same relief as made in all the writ petitions, i.e. mandamus for re-evaluation, the petitioner of each writ petition has already filed writ petition for the same relief i.e. mandamus for re-evaluation and all the writ petitions had been clubbed with Writ No. Writ-A No. 6420 of 2019 and have been disposed of by a common judgment and order dated 22nd October, 2019.

25. The issue of filing successive writ petition has been considered by the Apex Court time and again, accordingly it has been held that even if the earlier writ petition has been dismissed as withdrawn, Public Policy which is reflected in the principle enshrined in Order 23 rule 1 C.P.C., mandates that successive writ petition cannot be entertained for the same relief. (Vide M/s. Sarguja Transport Service Vs. State Transport Appellate Tribunal & Ors., AIR 1987 SC 88; Ashok Kumar & Ors. Vs. Delhi Development Authority, 1994 (6) SCC 97; and Khacher Singh Vs. State of U.P. & Ors., AIR 1995 All. 338).

26. In Sarguja Trasnport Service (Supra), the Apex Court has specifically opined that in the instant case, the High Court was right in holding that a fresh writ petition was not maintainable before it in respect of the same subject-matter since the earlier writ petition had been withdrawn without permission to file a fresh petition.

27. Even if a party does not pray for the relief in the earlier writ petition, which he ought to have claimed in the earlier petition, he cannot file a successive writ petition claiming that relief, as it would be barred by the principle of constructive res judicata enshrined in Explanation IV to Section 11 and Order 2 rule 2 C.P.C. as has been explained, in unambiguous and crystal clear language by the Apex Court in Commissioner of Income Tax, Bombay Vs. T.P. Kumaran reported in 1996 (10) SCC 561; Union of India & Ors. Vs. Punnilal & Ors. reported in 1996 (11) SCC 112; and M/s. D. Cawasji & Co. & Ors. Vs. State of Mysore & Anr. reported in AIR 1975 SC 813.

28. Similar view has been reiterated by the Apex Court in Avinash Nagra Vs. Navodaya Vidyalaya Samiti & Ors. reported in (1997) 2 SCC 534 and by the other Court in Uda Ram Vs. Central State Farm & ors. reported in AIR 1998 Raj. 186; and M/s. Rajasthan Art Emporium Vs. Rajasthan State Industrial and Investment Corporation & Anr. reported in AIR 1998 Raj. 277.

29. In the case of M/s. D. Cawasji & Co. etc. (Supra), the Apex Court observed as under:-

"Be that as it may, in the earlier writ petitions, the appellants did not pray for refund of the amounts paid by way of cess for the years 1951-52 to 1965-66 and they gave no reasons before the High Court in these writ petitions why they did not make the prayer for refund of the amounts paid during the years in question. Avoiding multiplicity of unnecessary legal proceedings should be an aim of the Courts. Therefore, the appellants could not be allowed to split up their claims for refund and file writ petitions in this piecemeal fashion. If the appellants could have, but did not, without any legal justification, claim refund of the amounts paid during the years in question, in the earlier writ petitions, we see no reason why the appellants should be allowed to claim the amounts by filing writ petitions again. In the circumstances of this case, having regard to the conduct of the appellants in not claiming these amounts in the earlier writ petitions without any justification, we do not think, we would be justified in interfering with the discretion exercised by the High Court in dismissing the writ petitions which were filed only for the purpose of obtaining the refund....in view of the above, the petition is liable to be dismissed as not maintainable and it is dismissed accordingly...."

30. Similarly, in the case of State of U.P. & Anr. Vs. Labh Chand reported in AIR 1994 SC 754, the Apex Court has held as under:-

"This reason is not concerned with the discretionary power of the Judge or Judges of the High Court under Article 226 of the Constitution to entertain a second writ petition whose earlier writ petition was dismissed on the ground of non-exhaustion of alternative remedy but of such a Judge or Judges having not followed the well established salutary rule of judicial practice and procedure that an order of a Single Judge Bench or a Larger Bench of the same High Court dismissing the writ petition either on the ground of latches or non-exhaustion of alternative remedy as well shall not be bye-passed by a Single Judge Bench or Judges of a Larger Bench except in exercise of review or appellate powers possessed by it..... But as the learned Single Judge constituting a Single Judge Bench of the same Court, who has in the purported exercise of jurisdiction under Article 226 of the Constitution bye-passed the order of dismissal of the writ petition made by a Division Bench by entertaining a second writ petition filed by the respondent in respect of the subject matter which was the subject matter of the earlier writ petition, the question is, whether the well established salutary rule of judicial practice and procedure governing such matters permit the learned Single Judge to bye-pass the order of the Division Bench on the excuse that High Court has jurisdiction under Article 226 of the Constitution to entertain a second writ petition since the earlier writ petition of the same person had been dismissed on the ground of non-availing of alternative remedy and not on merits.... Second writ petition cannot be so entertained, not because the learned Single Judge had no jurisdiction to entertain the same, but because entertaining of such a second writ petition would render the order of the same Court dismissing the earlier writ petition, redundant and nugatory although not reviewed by it in exercise of its recognized power. Besides, if a learned Single Judge could entertain a second writ petition of a person respecting a matter on which his first writ petition was dismissed in limine by another Single Judge or a Division Bench of the same Court, it would encourage an unsuccessful writ petitioner to go on filing writ petitions after writ petition in the same matter, in the same High Court and for it brought up for consideration before one Judge after another. Such a thing, if is allowed to happen, it would result in giving full scope and encouragement to an unscrupulous litigant to abuse the process of the High Court exercising its writ jurisdiction under Article 226 of the Constitution in that any order of any Bench of such Court refusing to entertain a writ petition could be ignored by him with impunity and the relief sought in the same matter by filing a fresh writ petition. This would only lead to introduction of disorder, confusion and chaos relating to exercise of writ jurisdiction by Judges of the High Court, for there could be no finality for an order of the Court refusing to entertain a writ petition. It is why the rule of judicial practice and procedure that a second writ petition shall not be entertained by the High Court on the subject matter respecting that the writ petition of the same person was dismissed by the same Court even if the order of such dismissal was in limine, be it on the ground of latches or on the ground of non-exhaustion of alternative remedy, has come to be accepted and followed as salutary rule in exercise of writ jurisdiction of the Court."

(Emphasis added).

31. In the case of Burn & Co. Vs. Their Employees, reported in AIR 1957 SC 38, the Apex Court has held as under:-

"That would be contrary to the well-recognised principle that a decision once rendered by a competent authority on a matter in issue between the parties after a full enquiry should not be permitted to be re-agitated. It is on this principle that the rule of res judicata enacted in Section 11, Civil P.C. is based. That section is, no doubt in terms in application to the present matter, but the principle underlying it, expressed in the maxim "interest rei publicae ut sit finis litium", is founded on sound public policy and is of universal application. (Vide Broom's Legal Maxims, Tenth Edition, page 218). 'The rule of res judicata is dictated' observed Sir Lawrence Jenkins C.J. in Sheoparasan Singh Vs. Ramnandan Prasad Narayan Singh, 43 Ind. App. 91: ILR 43 Cal. 694: (AIR 1916 PC 78) (C), by a wisdom which is for all time."

32. Therefore, in view of the above referred judgments, it is abundantly clear that even if the provisions of the Code of Civil Procedure are not applicable in writ jurisdiction, the principle enshrined therein can be resorted to for the reason that the principles, on which the Code of Civil Procedure is based, are founded on public policy and, therefore, require to be extended and made applicable in writ jurisdiction also in the interest of administration of justice. Any relief not claimed in the earlier writ petition should be deemed to have been abandoned by the petitioner to the extent of the cause of action claimed in the subsequent writ petition and in order to restrain the person from abusing the process of the Court, such an order/course requires not only to be resorted to but to be enforced.

33. In the case of Dr. Buddhi Kota Subbarao Vs. K. Parasaran & Ors., reported in AIR 1996 SC 2687, the Apex Court has observed as under:-

"No litigant has a right to unlimited drought on the Court time and public money in order to get his affairs settled in the manner he wishes. However, access to justice should not be misused as a licence to file misconceived and frivolous petitions."

34. Similar view has been reiterated by the Apex Court in the case of K.K. Modi Vs. K.N. Modi & Ors., reported in (1998) 3 SCC 573.

35. In Tamil Nadu Electricity Board & Anr. Vs. N. Raju Reddiar & Anr. reported in AIR 1997 SC 1005 the Apex Court held that filing successive misconceived and frivolous applications for clarification, modification or for seeking a review of the order interferes with the purity of the administration of law and salutary and healthy practice. Such a litigant must be dealt with a very heavy hand.

36. In Sabia Khan & ors. Vs. State of U.P. & ors., reported in (1999) 1 SCC 271, the Apex Court held that filing totally misconceived petition amounts to abuse of the process of the Court and such litigant is not required to be dealt with lightly.

37. In the case of Abdul Rahman Vs. Prasoni Bai & Anr., reported in (2003) 1 SCC 488, the Apex Court held that wherever the Court comes to the conclusion that the process of the Court is being abused, the Court would be justified in refusing to proceed further and refuse the party from pursuing the remedy in law.

38. Thus, in view of the above, the second writ petition is not maintainable for issuing a direction upon the respondent authorities to re-evaluate the respective Booklet Series provided to the petitioner of all the writ petition thrice.

39. In view of the aforesaid, this Court is of the opinion that these second writ petitions of the respective petitioner are not maintainable and are liable to be dismissed on this ground alone.

40. For the findings recorded by this Court to the maintainability of these writ petitions as well as on merits of the case as set up by the parties, this Court finds no good ground to interfere in the matter. All the writ petitions are, accordingly, dismissed.

(Manju Rani Chauhan, J.)

Order Date :- 25.07.2022

Jitendra/-