Sh. Vipon Sanduja vs Registrar, Delhi High Court & Anr.
2000 Latest Caselaw 364 Del

ORDER

A.K.Sikri,J.

1. Petitioner appeared in Delhi Judicial Service Examination 1996 con- ducted by Delhi High Court for 40 posts of Delhi Judicial Service. Examina- tion was conducted from 17.8.1996 to 19.8.1996 and result thereof was declared on 24.4.1997. Only 16 candidates were declared successful. Peti- tioner was not amongst successful candidates. On 9.8.1997, he received mark sheet dated 30.7.1997 as per which petitioner got 72 marks out of 200 in Civil Law-I paper. Petitioner was not satisfied with the evaluation in respect of this subject and he made representation dated 22.8.1997 to Hon'ble the Chief Justice, Delhi High Court and the Registrar (Exams) Delhi High Court requesting for rechecking/revaluation of Civil Law-I paper. This representation was rejected by Registrar vide communication dated 6.9.1997. Petitioner filed the instant petition, after a gap of about 14 months challenging the communication dated 6.9.1997 rejecting his representation. He submits that he has now discovered the provision giving him right to seek rechecking or revaluation and therefore filing the petition at this stage.

2. Interestingly although reason for filing belatedly the petition is that petitioner has discovered the provision of right of the petitioner not only to seek rechecking/revaluation i.e. enforcement of the application confirmed on the administrator as defined in DJS Rules 1970, no such provi- sion is shown or mentioned in the writ petition which allegedly gives right to the petitioner to seek rechecking or revaluation. In fact during the course of argument it was admitted that there is no such provision. Thus no valid explanation is given for approaching the Court belatedly and the petition suffers from latches and delay. However since case was heard on merits, I proceed to deal with the writ on merits as well.

3. The main thrust in the writ petition is that it is the right of every candidate appearing in the examination for rechecking and revaluation as the examination conducted have inherent risk of clerical/typographical or inadvertent error which invariably is associated with the conduct of exami- nation involving thousands of candidates. Reliance is placed on Rule 33 of The Delhi Judicial Service Rules 1970 which reads as under:-

"Rule 33: Residuary matters - In respect of all such matters regarding the conditions of service for which no provision or insufficient provision has been made in these rules, the rules or orders, for the time being in force and applicable to Government servants holding corresponding posts in connection with the affairs of the Union of India shall regulate the conditions of such service."

4. It is also submitted that there is a provision for rechecking and revaluation in the examination conducted by UPSC which should be treated as applicable in Delhi Judicial Service Examination also by virtue of Rule 33 mentioned above. On the basis of these averments following prayer is made in the writ petition:

(i) Respondent No.1 be directed to have proper guidelines to regulate the procedure for rechecking or revaluation at the earliest.

(ii) Directing the respondent No.1 to recheck the Civil Law (I) paper of the petitioner in the presence of the petitioner.

5. Admittedly there is no provision in the Delhi Judicial Service Rules providing for rechecking or revaluation of the examination. Such a provi- sion which is contained in the rules of UPSC cannot be made applicable to these examinations by virtue of Rule 33 of Delhi Judicial Service Rules. A perusal of this rule clearly shows that it relates to "conditions of serv- ice" in respect of which no provision or insufficient provision has been made in the rules. The "conditions of service" would be in respect of those who have been appointed to Delhi Judicial Service and the conduct of exami- nation would not come under the expression "conditions of service". Merely because UPSC is having such a provision does not mean that it has to be treated as incorporated in the conduct of examinations of Delhi Judicial Service. Delhi Judicial Service Rules 1970 have been made by Lieutenant Governor, Delhi by virtue of rule making power under proviso to Article 309 of the Constitution and once these rules do not contain any such provisions for rechecking/revaluation mandamus cannot be issued directing the respond- ents to frame such a rule.

6. Supreme Court, in the case of Umesh Chandra Shukla Vs. Union of India & Others. , while considering the provisions of the "Rules" regarding the conduct of examination thereunder, held that the High Court had no power to allow moderation of marks or to prescribe mini- mum marks which a candidate should obtain in aggregate, different from the minimum already prescribed in the Rules, and that such action would amount to amendment to the Rules which can be made by the Lt. Governor only under Article 234 of the Constitution. Any exercise not expressly provided for in the Rules cannot be undertaken. This is what the Court observed in this case:-

"At the hearing of the above writ petition Mr. F.S. Nariman, learned counsel for Shri Rajan Sharma, one of the candidates selected for the Delhi Judicial Service Examination held in the year 1984, who has been imp leaded as a respondent in this case submits fairly and we think rightly that in the absence of an express rule for revaluation it was not possible for the examin- ing body to get one of the answer books of Shri Rajan Sharma revalued. In the absence of 18 marks which were added at the revaluation, Shri Rajan Sharma would not have been eligible for the viva voce examination even though in some of the papers at the examination, he had done well. Shri Rajan Sharma, therefore, withdraws his application for appointment to the Delhi Judicial Service. We appreciate the stand rightly taken by Shri Rajan Sharma in this Court. In view of the above we direct that the name of Shri Rajan Sharma would not be considered by the examin- ing body for the purpose of appointment at the 1984 Examination."

7. Insofar as prayer of the petitioner for seeking rechecking/revaluation is concerned, in the absence of any provision in the Recruitment Rules, the petitioner cannot be granted this relief. This question is no more res integra and this Court dealing with DJS Examinations itself, passed order dated 23.2.1993 in CW No.473/93 dismissing the writ petition entitled Ambika Nath Mishra Vs. UOI & Ors. by observing as under :-

"There is no rule or regulation which can entitle the petitioner to seek revaluation of the paper. According to the respondents, the rechecking has been done and there is no mistake. Dismissed."

8. Not only this, the Division Bench of this Court in the case of Rajind- er Kumar Aggarwal Vs. High Court of Delhi & Anr. which was again a case relating to Delhi Judicial Service Examination itself, took the same view in its judgment dated 22.3.1993 after quoting aforesaid order dated 23.2.1993 as well as Supreme Court judgment in Umesh Chandra Shukla's case (Supra). Thus in the absence of any rule permitting rechecking/revaluation the petitioner cannot claim this relief.

9. One may refer to the judgment of Supreme Court in the case of Maha- rashtra State Board of Secondary and Higher Secondary Education & Anr.Vs. Paritosh Bhupesh Kurmarsheth etc. . In that case Court was concerned with the validity of Regulation 104 (1) & (3) framed by Maharashtra State Board of Secondary and Higher Secondary Educa- tion. This judgment was subsequently followed by Supreme court in the case of Goa, Daman & Diu Board of Secondary Education Vs. Kumari Hema Laad and & Ors. . Thus the Court has even upheld the validity of the rules which prohibit revaluation/rechecking. When this is the position in law giving a direction to the respondents to frame a rule providing for revaluation/rechecking is clearly misconceived.

10. One has to keep in mind that in such examinations conducted by educa- tional bodies or by recruiting bodies/agencies, a large number of students/candidates appear. Sometimes the number may be more than one lakh. The candidates who appear have the aspirations and hopes and they go by their own assessment. However, it is not necessary that the ultimate result is in accordance with these aspirations. Merely because ultimate result may not match the expectations of candidates cannot be a ground because of which revaluation/rechecking is permitted. These are policy matters and if framer of rules in his wisdom, decides not to make such a provision, no mandamus can be issued for making provision of this nature. For some rea- son, merely because a particular candidate is not happy or satisfied with the results, no mandamus can be issued that his papers be rechecked/reval- ued.

11. For these reasons, the writ petition fails and is accordingly dis- missed.

12. No orders as to costs.