Delhi High Court
Ravi Chandra Prakash vs Supreme Court Of India And Anr on 6 July, 2017
$~39
*IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) 3865/2017 & CM No.16979/2017
% Reserved on : 4th May, 2017
Date of decision : 6th July, 2017
RAVI CHANDRA PRAKASH ..... Petitioner
Through: Mr. Shishir Pinaki,
Mr. Mukesh Kr. Singh,
Ms. Sushma Singh and
Mr. Rajiv Sinha, Advs.
versus
SUPREME COURT OF INDIA AND ANR. ... Respondents
Through: None.
CORAM:
HON'BLE MS. JUSTICE GITA MITTAL
HON'BLE MS. ANU MALHOTRA
JUDGMENT
GITA MITTAL, ACTING CHIEF JUSTICE
1. The present writ petition has been filed by the writ petitioner
contending that in exercise of powers conferred by sub-rule(i) of
Rule 5 of Order IV of the Supreme Court Rules, 2013, the Supreme
Court has framed regulations for conducting the examination for
being placed as Advocate on Record ("AOR" hereafter). It is
contended that these regulations do not contain any provision for
rectifying errors, if any, occurring after evaluation of the answer
sheets by examiners; that they do not provide for any standard
method for evaluation of the answer sheets as is followed in
various national and state level examinations (for instance,
examinations conducted by the Union Public Service Commission
or State Public Service Commission) and as such they are
arbitrary, unjust, unfair, unreasonable, inequitable and violative of
Articles 14 of the Constitution of India. It is further contended that
with regard to the AOR Examination, 2016 in which the petitioner
participated, the respondents were required to get re-evaluated the
answer sheets of Paper-I (Practice & Procedure of the Supreme
Court) as well as Paper-III (Advocacy & Professional Ethics) by a
Senior Advocate who was not an evaluator of the AOR
Examination, 2016.
2. Premised on the above, the writ petitioner makes the
following prayers in the writ petition :
"a. Issue a writ, order or direction in the nature of
mandamus declaring Regulation 12 of the Regulations
Regarding Advocates-on-Record Examination , 2013
which bars re-evaluation of answer sheets as arbitrary,
unjust, unfair, unreasonable, inequitable and violative of
Articles 14.
b. Issue a writ, order or direction in the nature of
mandamus declaring Regulation 12 of the Regulations
Regarding Advocates-on-Record Examination , 2013 be so
read as to enable re-evaluation of answer sheets by an
expert or body of expert who was not a member of the
Board of Examiners in the year of conduct of the
examination.
c. Issue a writ, order or direction in the nature of
mandamus declaring Regulation 11(iv) of the Regulations
Regarding Advocates-on-Record Examination , 2013
which bars a candidate from availing more than 5 chances
at the AOR Examination as arbitrary, unjust, unfair,
unreasonable, inequitable and violative of Articles 14;
d. Issue a writ, order or direction in the nature of
mandamus declaring Regulation 11(iv) of the Regulations
Regarding Advocates-on-Record Examination , 2013
which equates appearance in any one of the papers of the
AOR examination for a candidate who comes within
Regulation 11(i) or Regulation (ii) as a chance as
arbitrary, unjust, unfair, unreasonable, inequitable and
violative of Articles 14;
e. Issue a writ, order or direction in the nature of
mandamus declaring Regulation 11(iv) of the Regulations
Regarding Advocates-on-Record Examination , 2013 be so
read as to exclude appearance in any one of the papers of
the AOR examination for a candidate who comes within
Regulation 11(i) or Regulation 11(ii) as a chance;
f. Issuance of appropriate writ/direction/orders on the
Respondents to revaluate the Petitioner's AOR Exam 2016
answer sheets of Paper I (Supreme Court Practice and
Procedure) and Paper III (Professional Ethics) by a
Senior Advocate who was not an evaluator in the AOR
Examination 2016, in light of the apparent faulty
evaluation by the Examiners of the said papers;
g. Issuance of appropriate writ/direction/orders on the
Respondents declaring that the Petitioner as having
availed of only 3 out of 5 chances in the AOR Examination
treating his appearance in only one paper in the AOR
Examination 2011 in terms of Regulation 11(i) and in the
AOR Examination 2017 in terms of Regulation 11(ii) as
not a chance/attempt but merging with the AOR
Examination 2010 and 2016 respectively;
h. Issue a writ, order or direction in the nature of
mandamus directing Respondent no.1 to incorporate in
the Regulations Regarding Advocates-on-Record
Examination, 2013 a minimum objective standard to be
adopted during evaluation of the answer scripts, standard
guidelines as to how the answer sheets of AOR
examination are be checked, the manner of checking and
how to award marks, a specific time frame for evaluation
and declaration of results so as to provide the candidate a
reasonable time to avail of re-evaluation of the answer
sheets as is followed by the various other national and
regional examination bodies (viz. UPSC, other State PSCs
etc.);
i. Pass any such further and other orders as this
Hon'ble Court so direct in the interest of justice."
3. So far as the factual matrix giving rise to the present writ
petition is concerned, the same is within a narrow compass. To the
extent necessary, we note the same hereafter.
4. The petitioner has claimed that he is a practicing advocate
who has put in 12 years of practice in the courts in Delhi and the
National Capital Region as well as quasi judicial fora. The
petitioner has claimed that he has assisted in cases as well as
practiced as before the Supreme Court of India as well as the High
Court in several matters of public importance.
5. The power of the Supreme Court of India to frame
regulations regarding its business is conferred under Article 145 of
the Constitution of India which reads as follows :
"145. Rules of Court, etc
(1) Subject to the provisions of any law made by
Parliament the Supreme Court may from time to time, with
the approval of the President, make rules for regulating
generally the practice and procedure of the Court
including
(a) rules as to the persons practising before the Court,
(b) rules as to the procedure for hearing appeals, and
other matters pertaining to appeals including the time
within which appeals to the Court are to be entered;
(c) rules as to the proceedings in the Court for the
enforcement of any of the rights conferred by Part III;
(cc) rules as to the proceedings in the Court under Article
139A;
(d) rules as to the entertainment of appeals under sub
clause (c) of clause ( 1 ) of Article 134;
(e) any judgment pronounced or order made by the Court
may be received and rules as to the conditions the
procedure for such review including the time within which
applications to the Court for such review are to be
entered;
(f) rules as to the costs of and incidental to any
proceedings in the Court and as to the fees to be charged
in respect of proceeding therein;
(g) rules as to the granting of bail;
(h) rules as to stay of proceedings;
(i) rules providing for the summary determination of any
appeal which appears to the Court to be frivolous or
vexatious or brought for the purpose of delay;
(j) rules as to the procedure for inquiries referred to in
clause ( 1 ) of Article 317
(2) Subject to the provisions of clause ( 3 ), rules made
under this article may fix the minimum number of Judges
who are to sit for any purpose, and may provide for the
powers of single Judges and Division Courts
(3) The minimum number of Judges who are to sit for the
purpose of deciding any case involving a substantial
question of law as to the interpretation of this Constitution
or for the purpose of hearing any reference under Article
143 shall be five: Provided that, where the Court hearing
an appeal under any of the provisions of this chapter other
than Article 132 consists of less than five Judges and in
the course of the hearing of the appeal the Court is
satisfied that the appeal involves a substantial question of
law as to the interpretation of this Constitution the
determination of which is necessary for the disposal of the
appeal, such Court shall refer the question for opinion to
a Court constituted as required by this clause for the
purpose of deciding any case involving such a question
and shall on receipt of the opinion dispose of the appeal in
conformity with such opinion
(4) No judgment shall be delivered by the Supreme Court
save in open Court, and no report shall be made under
Article 143 save in accordance with an opinion also
delivered in open Court
(5) No judgment and no such opinion shall be delivered by
the Supreme Court save with the concurrence of a
majority of the Judges present at the hearing of the case,
but nothing in this clause shall be deemed to prevent a
Judge who does not concur from delivering a dissenting
judgment or opinion."
(Emphasis by us)
6. In exercise of the power conferred under Article 145, it is
pointed out that in the year 1961, the Supreme Court of India had
notified Rules titled "Supreme Court Rules, 1961" which were to
govern the Examination for Advocates-on-Record. These Rules
were amended in the year 2013 when the Supreme Court Rules,
2013 (hereinafter referred to as the "Rules") came to be notified.
We extract the provisions of Order I Rules 2(1)(a); 2(1)(b) and
Order IV Rule (b) thereof which read thus :
"Order I
INTERPREPTATION
(2) xxx xxx xxx
2(1) xxx xxx xxx
(a) 'advocate' means a person whose name is entered
on the roll of advocates prepared and maintained by a
State Bar Council under the Advocates Act, 1961 (25 of
1961);
(b) 'advocate-on-record' means an advocate who is
entitled under these rules to act as well as to plead for a
party in the Court;
xxx xxx xxx
Order IV
ADVOCATES
xxx xxx xxx
(b) No advocate other than the Advocate-on-record for
a party shall appear, plead and address the Court in a
matter unless he is instructed by the advocate-on-record
or permitted by the Court.
xxx xxx xxx
5. No advocate shall be qualified to be registered as an
advocate-on-record unless :-
(i) his name is, and has been borne on the roll of any State
Bar Council for a period of not less than four years on thc
date ofcommencement of his training as provided
hercinafter: Provided however, if any candidate has
earlier appeared in any of the Advocates-on-Record
Examination he shall continue to be so eligible to sit in
any subsequent examination;
xxx xxx xxx"
7. It is also noteworthy to note the regulations regarding the
AOR examination framed in exercise of powers conferred by sub-
rule(1) of Rule 5 of Order IV of the Supreme Court Rules, 2013
which are titled "The Regulation Regarding AOR Examination".
The relevant sub-rules thereof are extracted below :
"(1) The examination shall be held under the general
supervision of a Committee of three Judges of the Court
to be appointed by the Chief Justice of India and to be
designated as the Examination Committee; unless
otherwise specifically ordered by the said Committee the
examination will be held twice a year preferably in May
and December.
xxx xxx xxx
(3) The examination shall be conducted by a Board of
Examiners to be nominated by the Committee, of which
Board the Registrar of the Court will be ex officio
Secretary.
(4)(a) The examination shall be held in the following
subjects:
Syllabus (I) Practice & Procedure of the Supreme Court.
(II) Drafting in two parts (III) Advocacy & Professional
Ethics (IV) Leading Cases (i) Relevant provisions in the
Constitution of India relating to the jurisdiction of the
Court. (ii) Supreme Court Rules and relevant provisions of
Civil Procedure Code, Limitation Act and the General
Principles of Court Fees Act. (i) Petitions for special leave
and statements of cases etc. (ii) Decrees & Orders and
Writs etc. A list of leading cases shall be made available
to the candidates at the time of notification of the
Advocates on-Record Examination.
(b) The Committee, on recommendation of the Board of
Examiners, shall prescribe the books for study for Papers
I to III and leading cases for Paper IV, which will remain
in force, until they are revised or modified.
xxx xxx xxx
(5)(a) Each paper shall carry 100 marks and in order to
pass the examination a candidate must obtain a minimum
of 50 per cent of the marks in each paper and 60 percent
in the aggregate.
(b) If the Committee on the recommendation of the
Board of Examiners is of the opinion that a candidate
has not sufficiently prepared himself for the examination
they may prescribe a time within which he shall not
present himself again for examination.
xxx xxx xxx
(9) The Board of Examiners shall at the conclusion of
the examination and after scrutiny of the answer papers
submit the results along with the answer papers for
approval to the Committee and the Committee may in its
discretion, moderate the said results in any manner it
thinks fit.
(10) As soon as the Committee has scrutinized the
results and approved the same the Secretary of the Board
shall notify the results on the Court's Notice Board.
Every candidate who is declared to have passed the said
Examination shall be given a certificate to that effect
under the hand of the Secretary.
(11)(i) A candidate, who fails to obtain 50 per cent
in one paper only but obtains 40 per cent in that paper
and also obtains 60 per cent in the aggregate in the
remaining papers, shall be allowed to appear in that
paper at anyone subsequent examination on payment of
the full examination fee and he shall be declared to have
passed the Advocates on-Record Examination if he
obtains 50 per cent marks in the paper in which he has
so reappeared and the marks so obtained in the paper he
has reappeared taken with the marks obtained in the
remaining papers at the earlier examination are 60 per
cent of the aggregate marks in all the papers.
(ii) A candidate who passes in all the papers at any
single examination but fails to obtain 60 percent of the
marks in the aggregate may, on payment of the full
examination fee, appear at anyone subsequent
examination in one of the papers only and shall be
declared to have passed the Advocates-on-record
Examination if the marks obtained by him in the
subsequent examination taken with the marks obtained in
the remaining papers at the earlier examination are 60
percent of the aggregate marks in all the papers. The
option will have to be exercised by the candidate at the
time of filing of proforma application for appearing in the
subsequent examination and the option once exercises
shall be binding on the candidate -.
(iii) A candidate shall not be allowed more than five
chances at the examination. Appearance even in anyone
of the papers in an examination shall be deemed to be a
chance.
(12) No application for re-evaluation of answer sheets
shall be entertained."
(Emphasis by us)
8. The petitioner contends that he obtained his LL.B. Degree
from Jamia Milia Islamia University, New Delhi. The petitioner
has further asserted that in 2010, as he fulfilled the eligibility
criteria for taking the AOR examination under the aforesaid
regulations, he applied and undertook the examination for the first
time. In his first attempt, the petitioner secured an aggregate of
60% marks in three of the papers i.e. Papers - I, III & IV.
However, in Paper - II (Drafting), the petitioner was able to secure
only 40% marks. Consequently, in view of the Regulation 11(i) of
the Regulations governing the AOR Examination, the petitioner
was required to appear in Paper - II in any one subsequent
examination. The petitioner would be declared to have passed the
AOR Examination only if the marks obtained by the petitioner in
such paper in the subsequent examination, taken together with the
marks obtained in the remaining papers at the earlier examination,
were 60% of the aggregate marks in all the papers.
9. It is submitted by the petitioner that, in order to obtain such
aggregate of 60% in the subsequent examination, he needed to
secure only 57.5 marks in the Paper - II of the AOR Examination
held in June, 2011. Unfortunately, the petitioner was able to secure
only 45 marks in the Paper - II (Drafting) which led to his non-
selection as an advocate on record.
10. The petitioner filed an application dated 16th December,
2011 under the Right to Information Act, 2005 with the Public
Information Officer (PIO) of the Supreme Court of India seeking a
copy of his answer sheets in Paper - II (Drafting) which was
received by him on the 16th of January 2012 under cover of a letter
dated 13th January, 2012.
The petitioner has placed before us a copy of this answer
sheet.
11. In the writ petition, the petitioner has tried to urge that he has
not been given sufficient marks and that his answers in few
questions were not properly evaluated. It is pointed out that the
petitioner also made representations dated 18th January, 2012 and
10th February, 2012 to the Advocates on Record Examination
Committee to this effect. The representations were rejected. The
petitioner accepted rejection of his representations and this matter
was not taken any further.
12. The dates on which the petitioner appeared in the
examinations thereafter is not mentioned in the writ petition.
However, the petitioner has stated that he "reposed faith in the
fairness of Committee" and participated "in the subsequent
examinations in all the four papers" but did not qualify the AOR
Examination due to the fact that he could not obtain 60% aggregate
marks each time. It is submitted that "on each subsequent
occasion", the petitioner received less marks in one or the other
subject resulting in his disqualification.
The petitioner has stated that in this manner, he
unsuccessfully participated in the AOR Examinations held in
2010, 2011, 2012 and 2013.
13. The petitioner further submits that to buttress his
preparations, the petitioner took a two year break and rigorously
prepared for the AOR Examination, 2016 which was held between
6th June, 2016 and 9th June, 2016. The significance of this attempt
was that, in terms of Regulation 11(iv) of the Advocate on Record
Regulations, the attempt in 2016 was the fifth and therefore, the
last attempt available to the petitioner for becoming an AOR.
14. Unfortunately, the petitioner was unable to secure the
prescribed benchmark in the AOR Examination, 2016 and was
declared unsuccessful upon evaluation which result was published
in February, 2017. In this attempt, it appears that the petitioner
secured 228.5 aggregate marks out of 400 marks in all the papers.
As per the break up, he had secured 52.5 marks in Paper - I; 66
marks in Paper - II; 50 marks in Paper - III and 60 marks in Paper
- IV and therefore, needed 11.5 marks to obtain 240 marks (which
form the 60% marks in aggregate). Therefore, in order to reach the
60% benchmark of 240 marks, the petitioner was falling short by
11.5 marks. The more serious consequence which has resulted to
the petitioner is that this result has effectively closed all
possibilities of the petitioner to become an advocate on record.
15. It is contended that the petitioner filed an application dated
14th February, 2017 under the Right to Information Act, 2005
seeking a copy of his answer sheets in the AOR Examination, 2016
which was supplied to him on the 2nd of March 2017.
16. Before us, it is contended that in Paper - I (Supreme Court
Practice and Procedure), the petitioner has been awarded only 52.5
marks. The submission of the writ petitioner is that, considering
the petitioner needed only 11.5 marks more, the evaluation of his
answer sheets was not effectively undertaken. It is further
contended that in Paper - III (Legal Ethics), the petitioner was
awarded only 50 marks even though, he answered all answers with
clarity, brevity and with reference to case law. It is contended that
unwarranted credit has been given to spelling or grammatical
mistakes without taking notice of the conceptual responses and
case law analysis presented by the petitioner. In support of these
submissions, the petitioner has submitted that he has got an
unbiased and objective assessment of his answer sheets by Senior
Advocates, practicing before the Supreme Court of India,
undertaken and that they were of the opinion that the petitioner
deserved to be awarded much higher marks in these papers and
ought to have been granted more than the 11.5 marks which he
needed to qualify the examination.
17. Armed with such opinion, in the writ petition, the petitioner
submits that he made a representation dated 3 rd March 2017 to the
Advocates on Record Examination Committee requesting re-
evaluation of his answer sheets in Paper - I (Supreme Court
Practice and Procedure) and Paper - III (Legal Ethics) by a body of
experts who were not examiners in the AOR Examination, 2016 so
that justice may be done to him. The petitioner also requested that
the Committee adopted a lenient view and granted 11.5 marks to
enable him to qualify the examination, as it was his last attempt.
18. This representation was rejected by the Committee which
rejection was communicated vide letter dated 30th March, 2017.
The petitioner contends that the rejection was without assigning
any reasons.
19. Aggrieved by the rejection of his representation, the
petitioner has filed the present writ petition challenging the
outcome of the AOR Examination, 2016 and also the said
Regulations for holding AOR Examinations. Apart from the
grievance that the regulations are arbitrary, the petitioner has
complained that the method of evaluation of the answer sheets
followed by the Advocates on Record Examination Committee was
inherently arbitrary, opaque, non-transparent and that a purely
subjective method stands adopted which is imminently susceptible
to bias. The submission also is that the evaluation of answer sheets
is not by any experts in the fields but is by practicing advocates
who are not trained in the business of evaluation of answer sheets
and would not have expertise of awarding marks etc. It is
submitted that sub-regulations (ii), (iii) and (iv) of the Regulation
11 of the Regulations regarding AOR Examination have to be read
ejusdem generis; that there is no intelligible basis for permitting
only five chances in the examination. The contention is that in any
case, in all his attempts, the petitioner cleared at least three papers,
failing only in one paper. The submission is that for this reason, the
prohibition contained in Regulation 11(iv) restricting available
opportunity to five chances for clearing the examination was not
applicable to the petitioner.
20. So far as the challenge by the petitioner being belated is
concerned, it is submitted by ld. counsel for the petitioner that the
cause of action for laying the challenge has arisen only now
inasmuch as the petitioner stands precluded from appearing in any
further examination only on account of his having been
unsuccessful in his fifth attempt in AOR Examination, 2016.
21. Given the submission that the petitioner's rights under
Articles 19(i)(g) and 21 of the Constitution of India regarding the
right to profess and practice his profession in the Supreme Court of
India stands interdicted and the petitioner's right under Rule 2(i)(b)
of the Supreme Court Rules, 2013 taken away, we have heard Mr.
Shishir Pinaki, ld. counsel for the petitioner at great length. We
have also perused the writ petition and scrutinized the answer
sheets as were placed by ld. counsel for the petitioner before us.
22. Having given our considered thought to the submissions
made before us, unfortunately, we are unable to agree with ld.
counsel for the petitioner.
23. The petitioner has participated in five examinations
conducted by the Supreme Court of India from 2010 till 2016. The
petitioner is a qualified and experienced advocate who has put in
over twelve years of legal practice and was fully aware of the
Regulations regarding the AOR Examination. When he applied for
and participated in the selection process, the petitioner was
therefore, fully aware of the manner in which the said examination
is conducted; the constitution of the Advocates on Record
Examination Committee; the qualifications, expertise and abilities
of the examiners as also the prohibition contained in Regulation 11
of the Regulations regarding AOR Examinations. He did not
object to the same when he applied for the examination in 2010.
Accepting the validity thereof, the petitioner undertook the re-
examination for Paper - II (Drafting) in 2011 for the reason that he
had secured insufficient marks therein which disabled him from
meeting the prescribed benchmark of 60% aggregate marks. The
petitioner's representations in respect of the examination were
rejected by the respondents, which rejection he accepted. Under
the same Regulations, the petitioner thereafter undertook the
examination in the years 2012, 2013 and 2016. These
examinations were conducted under the same Regulations. We
have extracted above the regulations regarding the AOR
Examination.
24. Regulation 12 of the Regulations unequivocally declared that
no re-evaluation shall be entertained. The petitioner accepted all
stipulations made in the Regulations and participated in the
examination. Clearly, the petitioner has filed the present writ
petition after having consciously participated in the examination
process and having failed to clear the same.
25. Clearly, the petitioner is a candidate who has participated in
the selection process and failed to succeed. He seeks to challenge
the regulations prescribing the method of selection. It is trite that a
candidate would stand estopped from challenging the selection
process as well as examination after having participated therein. In
this regard, we may usefully refer the observations made by the
Supreme Court in its three Judge Bench pronouncement reported at
1986 Supp SCC 285, Om Prakash Shukla v. Akhilesh Kumar
Shukla & Ors. wherein it was held as follows :
"24. Moreover, this is a case where the petitioner in the
writ petition should not have been granted any relief. He
had appeared for the examination without protest. He filed
the petition only after he had perhaps realised that he
would not succeed in the examination. The High Court
itself has observed that the setting aside of the results of
examinations held in the other districts would cause
hardship to the candidates who had appeared there. The
same yardstick should have been applied to the candidates
in the district of Kanpur also. They were not responsible
for the conduct of the examination."
26. We may also usefully refer the observations made by the
Supreme Court in its Division Bench pronouncement reported at
(2016) 1 SCC 454, Madras Institute of Development Studies &
Ors. v. K. Sivasubramaniyan & Ors. wherein it was held as
follows :
"14. The question as to whether a person who consciously
takes part in the process of selection can turn around and
question the method of selection is no longer res integra.
15. In G. Sarana v. University of Lucknow [(1976) 3 SCC
585 : 1976 SCC (L&S) 474] , a similar question came up
for consideration before a three-Judge Bench of this Court
where the fact was that the petitioner had applied to the
post of Professor of Anthropology in the University of
Lucknow. After having appeared before the Selection
Committee but on his failure to get appointed, the
petitioner rushed to the High Court pleading bias against
him of the three experts in the Selection Committee
consisting of five members. He also alleged doubt in the
constitution of the Committee. Rejecting the contention,
the Court held: (SCC p. 591, para 15)
"15. We do not, however, consider it necessary in the
present case to go into the question of the
reasonableness of bias or real likelihood of bias as
despite the fact that the appellant knew all the relevant
facts, he did not before appearing for the interview or
at the time of the interview raise even his little finger
against the constitution of the Selection Committee. He
seems to have voluntarily appeared before the
Committee and taken a chance of having a favourable
recommendation from it. Having done so, it is not now
open to him to turn round and question the constitution
of the Committee. This view gains strength from a
decision of this Court in Manak Lal case [Manak
Lal v. Prem Chand Singhvi, AIR 1957 SC 425] where
in more or less similar circumstances, it was held that
the failure of the appellant to take the identical plea at
the earlier stage of the proceedings created an effective
bar of waiver against him. The following observations
made therein are worth quoting: (AIR p. 432, para 9)
'9. ... It seems clear that the appellant wanted to
take a chance to secure a favourable report from
the tribunal which was constituted and when he
found that he was confronted with an unfavourable
report, he adopted the device of raising the present
technical point.'"
16. In Madan Lal v. State of J&K [(1995) 3 SCC 486 :
1995 SCC (L&S) 712 : (1995) 29 ATC 603] , similar view
has been reiterated by the Bench which held that: (SCC p.
493, para 9)
"9. Before dealing with this contention, we must keep
in view the salient fact that the petitioners as well as
the contesting successful candidates being respondents
concerned herein, were all found eligible in the light of
marks obtained in the written test, to be eligible to be
called for oral interview. Up to this stage there is no
dispute between the parties. The petitioners also
appeared at the oral interview conducted by the
Members concerned of the Commission who
interviewed the petitioners as well as the contesting
respondents concerned. Thus, the petitioners took a
chance to get themselves selected at the said oral
interview. Only because they did not find themselves to
have emerged successful as a result of their combined
performance both at written test and oral interview,
they have filed this petition. It is now well settled that if
a candidate takes a calculated chance and appears at
the interview, then, only because the result of the
interview is not palatable to him, he cannot turn round
and subsequently contend that the process of interview
was unfair or the Selection Committee was not
properly constituted. In Om Prakash Shukla v. Akhilesh
Kumar Shukla [1986 Supp SCC 285 : 1986 SCC (L&S)
644] it has been clearly laid down by a Bench of three
learned Judges of this Court that when the petitioner
appeared at the examination without protest and when
he found that he would not succeed in examination he
filed a petition challenging the said examination, the
High Court should not have granted any relief to such
a petitioner."
17. In Manish Kumar Shahi v. State of Bihar [(2010) 12
SCC 576 : (2011) 1 SCC (L&S) 256] , this Court
reiterated the principle laid down in the earlier judgments
and observed: (SCC p. 584, para 16)
"16. We also agree with the High Court [Manish
Kumar Shahi v. State of Bihar, 2008 SCC OnLine Pat
321 : (2009) 1 AIR Jhar R 1015] that after having
taken part in the process of selection knowing fully well
that more than 19% marks have been earmarked for
viva voce test, the petitioner is not entitled to challenge
the criteria or process of selection. Surely, if the
petitioner's name had appeared in the merit list, he
would not have even dreamed of challenging the
selection. The petitioner invoked jurisdiction of the
High Court under Article 226 of the Constitution of
India only after he found that his name does not figure
in the merit list prepared by the Commission. This
conduct of the petitioner clearly disentitles him from
questioning the selection and the High Court did not
commit any error by refusing to entertain the writ
petition."
18. In Ramesh Chandra Shah v. Anil Joshi [(2013) 11
SCC 309 : (2013) 3 SCC (L&S) 129] , recently a Bench of
this Court following the earlier decisions held as under:
(SCC p. 320, para 24)
"24. In view of the propositions laid down in the
abovenoted judgments, it must be held that by having
taken part in the process of selection with full
knowledge that the recruitment was being made under
the General Rules, the respondents had waived their
right to question the advertisement or the methodology
adopted by the Board for making selection and the
learned Single Judge [Anil Joshi v. State of
Uttarakhand, 2012 SCC OnLine Utt 521] and the
Division Bench [Ravi Shankar Joshi v. Anil Joshi, 2012
SCC OnLine Utt 766] of the High Court committed
grave error by entertaining the grievance made by the
respondents."
27. As noted above, the petitioner has accepted the correctness
of the evaluation process; the expertise of the examiners and
reposed faith in the ability of the Examining Committee, when he
participated in the examination five times, without making any
objection or challenge, even if such challenge was maintainable.
The petitioner therefore, would stand precluded from making
the present challenge on this ground alone.
28. The other important aspect of the matter is that the
Regulation 12 clearly states no application for re-evaluation of the
answer sheets shall be entertained. Is it open to this court to direct
re-evaluation despite this prohibition?
29. Mr. Shishir Pinaki, ld. counsel for the petitioner has placed
reliance on the pronouncement of the Supreme Court reported at
(2004) 13 SCC 383, Board of Secondary Education v. Pravas
Ranjan Panda & Anr.. In this case, the respondent no.1 appeared
in High School Certificate Examination, 2003 as a regular
candidate. He passed the said examination securing about 90%
marks. The respondent no.1 filed a writ petition under Article 226
of the Constitution of India alleging that he had answered all the
questions correctly without committing any mistake and, therefore,
deserved full marks in each paper, but due to carelessness and
negligence of the Board in appointing inexperienced and
unqualified examiners in certain papers, low marks had been
awarded to him due to which he lost his chance of being within the
first ten examinees in the HSC Examination, 2003. The respondent
no.1 prayed for re-evaluation of his answer sheets. The High Court
had allowed the petition with a direction to the Board to scrutinise
and recheck the answer scripts of examinees securing 90% and
above marks in aggregate in HSC Examination, 2003 and if there is
any change or variation in the marks, the petitioner shall be
informed accordingly. So far as the candidates who secured less
than 90% marks in aggregate, who had applied for rechecking and
re-addition of marks in certain papers, are concerned, it was
directed by the court that they have to be considered in accordance
with the resolution of the Board for rechecking of marks. We may
usefully extract the observations of the Supreme Court in para 6 of
Board of Secondary Education which answered the above issue :
"6. The High Court though observed that the writ
petitioner who has taken the examination is hardly a
competent person to assess his own merit and on that
basis claim for re-evaluation of papers, but issued the
aforesaid direction in order to eliminate the possibility of
injustice on account of marginal variation in marks. It is
an admitted position that the regulations of the Board of
Secondary Education, Orissa do not make any provision
for re-evaluation of answer-books of the students. The
question whether in absence of any provision to that effect
an examinee is entitled to ask for re-evaluation of his
answer-books has been examined by us in Pramod Kumar
Srivastava v. Chairman, Bihar Public Service
Commission [(2004) 6 SCC 714 : 2004 SCC (L&S) 883]
decided on 6-8-2004. It has been held therein that in
absence of rules providing for re-evaluation of answer-
books, no such direction can be issued. It has been further
held that in absence of clear rules on the subject, a
direction for re-evaluation of the answer-books may throw
many problems and in the larger public interest such a
direction must be avoided. We are, therefore, of the
opinion that the impugned order of the High Court
directing for re-evaluation of the answer-books of all the
examinees securing 90% or above marks is clearly
unsustainable in law and must be set aside."
30. The Board had sought review of this decision of the High
Court contending that it would face immense difficulties in
scrutinising and examining all answer-sheets after publication of
results. This review was dismissed.
31. In the pronouncement of the Supreme Court reported at
(2009) 1 SCC 599, Sahiti & Ors. v. Chancellor, Dr. N.T.R.
University of Health Sciences & Ors., the Supreme Court placed
reliance on (2004) 13 SCC 383, Board of Secondary Education
and (2004) 6 SCC 714, Pramod Kumar Srivastava v. Bihar Public
Service Commission and observed as follows :
"36. The Supreme Court (in Board of Secondary
Education case [(2004) 13 SCC 383] ) was of the
opinion that the question whether in the absence of
any provision to that effect an examinee is entitled to
ask for re-evaluation of his answer books was
examined by the Supreme Court in Pramod Kumar
Srivastava v. Bihar Public Service Commission [(2004)
6 SCC 714 : 2004 SCC (L&S) 883] . It was noticed by
the Supreme Court that in the said decision it was held
that in the absence of rules providing for re-evaluation
of answer books no direction should be issued because
a direction for re-evaluation of the answer books
would throw many problems and in the larger public
interest such a direction must be avoided. Therefore,
the Supreme Court expressed the opinion that the order
of the High Court directing re-evaluation of the
answer books of all the examinees securing 90% or
above marks was clearly unsustainable in law and set
aside the same. The above decision deals with the right
of the student or candidate to claim re-examination/re-
evaluation of his answer sheet and the power of the
High Court to order revaluation of answer sheets. It
does not deal with the power of the Board to order re-
evaluation of answer books if the factual scenario so
demands.
37. Award of marks by an examiner has to be fair and
considering the fact that re-evaluation is not
permissible under the Statutes at the instance of the
candidate, the examiner has to be careful, cautious
and has the duty to ensure that the answers are
properly evaluated. Therefore, where the authorities
find that award of marks by an examiner is not fair or
that the examiner was not careful in evaluating the
answer scripts, re-evaluation may be found necessary.
38. There may be several instances wherein re-
evaluation of the answer scripts may be required to be
ordered and this Court need not make an exhaustive
catalogue of the same. However, if the authorities are
of the opinion that re-evaluation of the answer scripts
is necessary then the Court would be slow to substitute
its own views for that of those who are expert in
academic matters.
39. Under the circumstances, the plea advanced on
behalf of the respondents that the Vice-Chancellor of
Dr. N.T.R. University of Health Sciences had no
authority to order re-evaluation of the answer scripts,
cannot be upheld. Therefore, this Court does not agree
with the finding recorded by the Division Bench of the
High Court that the Vice-Chancellor of the University
had no power or jurisdiction to order the reverification
of answer scripts. However, the facts indicate that the
Vice-Chancellor had exercised power to order
reverification of answer scripts under pressure and
coercion from the students and their parents and not
independently on merits.
xxx xxx xxx
41. From the record it is evident that the University
authorities, including the Vice-Chancellor, did not at all
go into the merits of the allegations made in the
complaints/representations submitted by the Parents'
Association for reverification to find out whether there
was any grain of truth in them. The record produced by
the University does not give any indication of
methodology adopted by the Committee for revaluation.
Moreover, the members of the Committee appointed by
the Vice-Chancellor for revaluation of answer scripts
had undertaken reverification of 1082 answer scripts
and completed reverification in two days, which itself
indicates that the said revaluation was not properly
done and no credence could be given to the same.
42. It is worth noticing that the decision of the
Executive Council to cancel the result of the students on
the basis of reverification and giving an opportunity to
the failed students to reappear in the first year MBBS
examination was approved by the Vice-Chancellor
himself. Therefore, this Court is of the opinion that the
Division Bench of the High Court was justified in
upholding the decision of the Executive Council to
cancel the result obtained on reverification of answer
scripts."
(Emphasis by us)
32. So far as the present case is concerned, there is nothing
before us which would enable us to conclude that the award of
marks to the petitioner by the examiner is unfair, arbitrary or
unreasonable. There is no allegation at all by the petitioner that
there is any mala fide in the evaluation of his papers.
33. The issue as to whether in the absence of any provision of re-
evaluation, a direction to this effect can be issued by the court, has
been considered at length in a judgment dated 25th May, 2010
passed by the Supreme Court of India in Civil App.No.907/2006,
H.P. Public Service Commission v. Mukesh Thakur & Anr. For
reasons of expediency, we extract hereunder the binding
consideration by the Supreme Court :
"24. The issue of re-evaluation of answer book is no
more res integra. This issue was considered at length
by this Court in Maharashtra State Board of
Secondary and Higher Secondary Education & Anr.
Vs. Paritosh Bhupesh Kurmarsheth etc.etc. AIR 1984
SC 1543, wherein this Court rejected the contention
that in absence of provision for re-evaluation, a
direction to this effect can be issued by the Court. The
Court further held that even the policy decision
incorporated in the Rules/Regulations not 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 Court held as under:
"..........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... .......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........."
25. This view has been approved and relied upon and
re-iterated by this Court in Pramod Kumar Srivastava
Vs. Chairman, Bihar Public Service Commission,
Patna & Ors, AIR 2004 SC 4116 observing as under:
"Under the relevant rules of the Commission,
there is no provision wherein a candidate may
be entitled to ask for reevaluation 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 noting 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 reevaluation of his
marks." (emphasis added)
26. A similar view has been reiterated in Dr.
Muneeb Ul Rehman Haroon & Ors. Vs. Government
of Jammu & Kashmir State & Ors. AIR 1984 SC 1585;
Board of Secondary Education Vs. Pravas Ranjan
Panda & Anr. (2004) 13 SCC 383; President, Board of
Secondary Education, Orissa & Anr. Vs. D. Suvankar
& Anr. (2007) 1 SCC 603; The Secretary, West Bengal
Council of Higher Secondary Education Vs. Ayan Das
& Ors. AIR 2007 SC 3098; and Sahiti & Ors. Vs.
Chancellor, Dr. N.T.R. University of Health Sciences
& Ors. (2009) 1 SCC 599.
27. Thus, the law on the subject emerges to the effect
that in absence of any provision under the Statute or
Statutory Rules/Regulations, the Court should not
generally direct revaluation."
(Emphasis by us)
34. In the present case the rules contain an absolute prohibition
against revaluation. The prayer of the petitioner to this effect is
clearly misconceived.
35. We have extracted the above provisions of Rule 2(i)(b) of
Order I of the Supreme Court Rules, 2013 which elaborates the
functions of the advocate on record Supreme Court. It is evident
therefrom that a person who fails to clear the AOR Examination
does not lose the right to argue cases before the court but only loses
the authority to file petitions and to file vakalatnama before the
Supreme Court of India.
36. The petitioner could not meet the benchmark in different
papers on different occasions which included Drafting at one time
and Practice & Procedure of the Supreme Court as well as
Advocacy & Professional Ethics in 2016. He has thus failed to
satisfy the requirement laid down by the Regulations under which
he took the examination and therefore, stands prohibited from
engaging with the Registry of the Supreme Court. This
prohibition, given the clear declaration in the regulations, cannot be
faulted with.
37. The petitioner does not challenge the authority of the
Supreme Court to control and regulate the persons who could be
permitted to so act and conduct business with the Registry of the
Supreme Court.
38. Even to the constitution and appointments of the Board and
examiners , the petitioner has started to make objections only after
he has failed to meet the benchmark. The challenge is clearly
belated and an afterthought and ought not to be entertained for this
reason alone.
39. The challenge to the AOR Regulations is therefore,
misdirected and untenable. No legally tenable submission is placed
which would enable this court to find illegality in the appointment
of the Advocates on Record Examination Committee or the
examiners by the respondents.
40. We therefore, find no merit in this writ petition which is
hereby dismissed. The pending application also stands dismissed.
ACTING CHIEF JUSTICE
ANU MALHOTRA, J
JULY 06, 2017
aj
