Nimmakakayala Geeta Swapna vs Union Of India
2008 Latest Caselaw 1899 Del

       IN THE HIGH COURT OF DELHI AT NEW DELHI


                               W.P.(C) 3771/2008

                                               Reserved on October 22, 2008
                                               Date of decision: October 24, 2008


       NIMMAKAKAYALA GEETA SWAPNA                   ..... Petitioner
                      Through Dr. G.R. Sharma with Mr. Anil Gupta,
                      Advocate

                      versus


       UNION OF INDIA & ANR                                ..... Respondents
                     Through Mr. Naresh Kaushik with Ms. Amita Kalkal,
                     Advocate for UPSC.
                     Ms. Jagrati Singh, Advocate for Mr. A.K. Bhardwaj,
                     Advocate for UOI.

       CORAM:
       HON'BLE DR. JUSTICE S. MURALIDHAR
       HON'BLE MR. JUSTICE SURESH KAIT


         1. Whether Reporters of local papers may be

            allowed to see the judgment?                            No

         2. To be referred to the Reporter or not?                 Yes

         3. Whether the judgment should be reported in              Yes

            Digest?



                                JUDGEMENT

1. This writ petition challenges an order dated 26th March 2008 passed by the

Central Administrative Tribunal („Tribunal‟), Principal Bench dismissing the

petitioner‟s application OA No. 592 of 2008.

2. The facts leading to the filing of the present petition are that the petitioner

sat for the Civil Service (Main) Examination 2006 conducted by the respondent

No.2 Union Public Service Commission (UPSC). Among the subjects were

Psychology Part-II and Essay (English). According to the petitioner, she had

performed very well in these subjects. She states that she appeared in the

personality test but ultimately did not make it to the merit list. It is the case of the

petitioner that on knowing her marks in Essay and Psychology-II papers to be 64

out of 200 and 126 out of 300 respectively, she wrote a letter dated 8th June 2007 to

the UPSC seeking "revaluation/reappraisal of the said two subjects". The UPSC

replied by a letter dated 4th July 2007 informing her that although these papers

"have been rechecked/retotalled", "no error has been noticed". The petitioner then

filed initially a writ petition in this Court which was dismissed with liberty to the

petitioner to approach the Central Administrative Tribunal („Tribunal‟).

3. The petitioner then filed OA No. 592 of 2008 before the Tribunal. The case

set up by the petitioner before the Tribunal was that the UPSC ought to have

revalued her answer sheets in Essay and Psychology-II by an independent expert

and that in failing to do so the UPSC had acted arbitrarily and malafide. Her case

was that her answer sheets in the said two subjects were not checked by the experts

in the field as was evident from the fact that she had got far less marks than she

should have. The Tribunal has by the impugned order dated 26th March 2008

dismissed the petitioner‟s application holding that there was no rule prescribed by

the UPSC which permitted revaluation of answer sheets and that in the

circumstances it was not possible for the Tribunal to issue a direction to that effect

to the UPSC.

4. When the writ petition was listed for hearing on 16th May 2008 this Court

required to the UPSC to produce the answer sheets of the petitioner in said two

subjects in a sealed cover. At the hearing on 23rd May 2008 this Court examined

the answer sheets submitted to it in sealed cover and returned them to the learned

counsel for the UPSC. At the hearing on 29th May 2008 the learned counsel

appearing for the UPSC informed this Court that there is no provision under which

there can be a revaluation of the answer sheets and thereafter the case was set

down for final hearing.

5. We have heard the submissions of Dr. G.R. Sharma, learned counsel for the

petitioner and Mr. Naresh Kaushik, learned counsel for the UPSC.

6. The first submission made by learned counsel for the petitioner is that the

UPSC has adopted a moderation procedure whereby the marks awarded to the

petitioner in Psychology-II were reduced from 152 to 126 and that this itself

demonstrated arbitrariness. When asked to show the factual basis of this

submission learned counsel for the petitioner sought to contend that his source was

the information provided orally to this Court by learned counsel for the UPSC

during a previous hearing. No such statement has been recorded in any

proceedings in this case. We also find that no such case has been set up by learned

counsel for the petitioner before the Tribunal. In para 4.15 of the application filed

by the petitioner before the Tribunal, it has been stated:

"4.15 That the applicant appeared in the examination and scored good marks in all the subjects as can be see in the mark sheets bearing No. 6264 relating to Roll No. 005964 issued to the applicant, but the applicant was shocked to find that in two subjects i.e. one Essay Code No. 96, Psychology-II Code No. 38, the marks were not as good as she scored in other subjects as such, the petitioner was surprised and shocked to see such a low score whereas she scored very good marks in the other papers in the examination."

The mark sheet referred to in the above paragraph was enclosed by the petitioner as

Annexure P-6. Further, in the present writ petition again in para 16 the petitioner

has referred to "marks sheet bearing No. 6264 relating to Roll No. 005964 issued

to the petitioner" and has annexed a copy of the same as Annexure P-6. A perusal

of Annexure P-6 shows that it is the photocopy of the mark sheet issued by the

UPSC indicating that the name of the petitioner and her Roll number. This mark

sheet clearly shows that the marks obtained by the petitioner in Essay was 64 out

of 200 and in Psychology-II it was 126 out of 300. Therefore, there was no

question of the petitioner coming to know of her reduced marks only on account of

some oral statement by counsel for the UPSC, which incidentally has been denied

by him.

7. Learned counsel for the petitioner then referred to his rejoinder where it is

stated that "actually and factually I was allegedly awarded 60 marks in Essay and

152 in Psychology II." We find absolutely no merit in this submission made in the

rejoinder for the first time. This rejoinder is purportedly in reply to the counter

affidavit which however does not make any reference to a reduction of the marks

awarded to the petitioner as a result of any moderation procedure. We find no such

case of alleged reduction in marks having been set up by the petitioner before the

Tribunal or even in the writ petition filed in this Court. Throughout, her case has

been that she should have been awarded marks higher than 126 out of 300 for

Psychology II and 64 out of 200 for Essay.

8. Learned counsel for the petitioner then contended that if the petitioner was

awarded 152 marks in Psychology-II, she would qualify in the examination. Again

we find no such case having been set up at any point of time by the petitioner

before the Tribunal or in the writ petition filed in this Court. We find this

submission to be entirely without basis.

9. It was then sought to be contended that although there is no rule prescribed

by which revaluation of answer sheets can be permitted, this Court should in the

interests of justice, issue such a direction. This Court is not inclined to do so in

view of the settled law in this regard. The judgment of the Supreme Court in in

Pramod Kumar Srivastava v. Chairman, Bihar Public Service Commission

(2004) 6 SCC 714 is categorical. It has been held by the Supreme Court in the said

decision that when there is no provision entitling a candidate to have his answer

sheets revalued, a prayer to that effect before the High Court would be "wholly

untenable." The Supreme Court has also pointed out the practical difficulties in

permitting revaluation of answer sheets after the declaration of the results. Learned

counsel for the petitioner was unable to distinguish this judgment.

10. Learned counsel for the petitioner referred to the judgment of the Supreme

Court in Secretary, West Bengal Council of Higher Secondary Education v. Ayan

Das (2007) 8 SCC 242 where in para 13 it was observed that it was important to

have a fool proof system of evaluation. Having gone through the said judgment

and having examined the facts of the present case this Court is of the considered

view that no error can be found in the system of evaluation followed by the UPSC

in the instant case. There is no rule requiring it to undertake revaluation of the

answer sheets. We are not at all impressed by the submission that the evaluation of

the answer sheets of the petitioner in the first instance was done by the persons

who were not qualified or competent. This submission is entirely without basis

and remains unsubstantiated. Reliance was sought to be placed on the judgment of

the Supreme Court in The President Board of Secondary Education, Orissa v. D.

Suvankar 2006 (12) SCALE 24. The facts of the said case make it clear that it has

no application to the present case.

11. We find absolutely no infirmity in the impugned order of the Tribunal.

There is no merit in this petition and it is dismissed as such.

S. MURALIDHAR, J.

SURESH KAIT, J OCTOBER 24, 2008 rk