Jharkhand High Court

Ravindra Rai vs Jharkhand Urja Vikas Nigam ... on 11 April, 2023

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     IN THE HIGH COURT OF JHARKHAND AT RANCHI
                 L.P.A. No. 283 of 2020
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Ravindra Rai, Aged about 61 years, son of Late Rama Rai, R/O C/O Sri Mritunjai Rai, Koto P.T.P.S., P.O. P.T.P.S., P.S.: Patratu, District Ramgarh, Jharkhand.

... Appellant/ Petitioner Versus

1.Jharkhand Urja Vikas Nigam Limited, through its Chairman cum Managing Director, Engineering Building, Dhurwa, P.O. & P.S. Dhurwa, District-Ranchi.

2.General Manager (Personnel), Jharkhand Urja Vikas Nigam Limited, Engineering Building, Dhurwa, P.O. & P.S. Dhurwa, District-Ranchi.

3.Deputy General Manager (Personnel), Jharkhand Urja Vikas Nigam Limited, Engineering Building, Dhurwa, P.O. & P.S. Dhurwa, District-Ranchi.

4.General Manager (Finance), Jharkhand Urja Vikas Nigam Limited, Engineering Building, Dhurwa, P.O. & P.S. Dhurwa, District-Ranchi.

                 ...  ...    Respondents/ Respondents

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CORAM: HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD HON'BLE MR. JUSTICE SUBHASH CHAND

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For the Appellants : Mr. Shresth Gautam, Advocate For the Res-State : A.C to Sr. SC. I For the JUVNL : Mr. Mukesh Kumar Sinha, Sr. S.C

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Per Sujit Narayan Prasad, J:

Order No. 01/Dated 11th April, 2023

I.A. No. 5034 of 2022

The present Interlocutory Application has been filed

for ignoring part of the defect no. 2 as pointed out by the

office.

2. Heard learned counsel for the parties.

3. Having regard to the averments made in this

application, we are of the view that the defect, as pointed

out by the office, is required to be ignored so that the

matter may be heard on merit.

4. Accordingly, I.A. No. 5034 of 2022 is allowed and

part of defect no. 2 is ignored.

I.A. No. 9574 of 2022

5. The present Interlocutory Application has been filed

for condonation of delay of 64 days in filing the instant

appeal.

6. Heard learned counsel for the parties.

7. No counter affidavit has been filed opposing the

prayer for condoning the delay.

8. Having regard to the averments made in this

application, we are of the view that the appellants were

prevented by sufficient cause from preferring the appeal

within the period of limitation.

9. Accordingly, I.A.No.9574 of 2022 is allowed and

delay of 64 days in preferring the appeal is condoned.

L.P.A. No. 283 of 2020

10. The instant intra-court appeal, under Clause

10 of the Letters Patent, is directed against order dated

11.12.2019 passed by learned Single Judge in W.P. (S) No.

228 of 2019, by which the writ petition was dismissed

refusing to interfere with order dated 15.05.2018 passed by

respondent no. 3 whereby and whereunder the petitioner

has been intimated that the petitioner did not pass in the

examination even after re-evaluation.

11. The briefs facts of the case, as per the pleadings

made in the writ petition, read as under:

The petitioner was initially appointed as Unskilled

Khalasi in the year 1990 and thereafter in pursuance of

departmental examination, the petitioner along with other

candidates were appointed as Correspondence Clerk in the

year, 2007.

In the year 2012, the petitioner appeared in the

examination conducted by the respondents-Nigam for

promotion from the post of Correspondence Clerk to Head

Clerk, wherein the petitioner was declared unsuccessful.

Pursuant thereto, the petitioner submitted application

under Right to Information Act, 2005 in the year 2014 itself

for answer-sheet but the same alleged to have been denied

to be provided, the petitioner preferred first appeal and

then second appeal before the State Commission under RTI

Act praying for copy of his evaluated answer booklet along

with the evaluated answer booklet of the candidates, who

were declared successful. Finally, in the year 2017 the

answer booklet was provided only after the petitioner

superannuated from the services.

In the meantime, the petitioner appeared in the

exam conducted for departmental promotion was declared

successful and in compliance of the standing order of the

Board contained as contained Memo No. 285 dated

04.06.1969 the seniority of the petitioner was retained.

It is specific case of the petitioner that after receipt

of the evaluated copy, the petitioner found that all the

questions which were duly answered by the petitioner were

marked to be correct however no mark was allotted for a

particular question No. 4 of paper 2 and as such he

represented before the respondents-authorities for

revaluation of his copy.

It is the case of the petitioner though a Committee

was constituted but forming the members who had

previously been prejudicial to the petitioner in course of

appeal before the State Information Commission and

against whom the petitioner had moved in a criminal case

before the competent Court. As a result of the re-evaluation

undertaken by the said Committee and keeping in view the

consequences already provided in the inter departmental

noting the petitioner was declared unsuccessful and as

such the benefits for which the petitioner was entitled for

were withheld by the respondents and same was

communicated to the petitioner vide Memo No. 760/Nigam

Mukhyalay, Ranchi dated 15.05.2018.

Being aggrieved thereof, he represented before the

respondents making the prayer for re-evaluation of the

booklet by fair and impartial committee and if declared as

pass be pleased to grant the benefits but to no effect hence

the petitioner moved before this Court by filing writ petition

being W.P. (S) No. 228 of 2019.

The learned Single Judge, after calling upon

respondents-Nigam and considering the fact that the

answer-sheet has already been re-evaluated and even then

the writ petitioner has not found to have obtained the

marks which the last selected candidate has obtained,

refused to interfere with the impugned decision taken by

the respondents-authorities, against which the instant

intra-court appeal has been filed.

12. Mr. Shresth Gautam, learned counsel for the

petitioner has submitted that the learned Single Judge has

not appreciated the fact in right prospective since the very

issue of malice of the members of the committee who has

re-evaluated the answer-sheet and intentionally allotted

lesser marks so that the writ petitioner may not obtain

marks at least at par with the last selected candidates who

have secured 40 marks whereas the petitioner was allotted

38 marks. It has been contended that if the members of the

expert committee would have been a person having no

biasness against the writ petitioner, there was likelihood of

success of the writ petitioner since the expert committee

has awarded only 8 marks out of 20 marks and if 10 marks

would have been awarded after re-evaluation in total he

would have obtained 40 marks to get successful.

In the background of aforesaid facts, it has been

submitted that the aforesaid aspect of the matter since has

not been considered therefore, the orders passed by the

learned Single Judge suffers from infirmity and is not

sustainable in the eye of law.

13. Per contra, Mr. Mukesh Kumar, learned counsel

appearing for the respondents-Nigam has submitted, by

reverting the argument advanced on behalf of appellant

with regard to malice of the members of the committee, that

though the issue of malice has been raised but the

members of the committee has never been impleaded as

party in the proceeding and hence in absence of

impleadment of an individual person as party-respondent

the issue of malice ought not to be allowed to be agitated

that too at the stage of intra-court appeal.

It has been contended that if the members of the

expert committee would have been impleaded as party they

would have been noticed to establish the allegation so made

by the appellant-writ petitioner but since the members of

the committee were not party to the proceeding hence there

is no finding to that effect by the learned Single Judge.

Therefore, contention has been raised that the issue of

malice and prejudice which is being raised on behalf of

appellant in absence of impleadment of members of

committee as party respondent is not just and proper.

It has further been contended that otherwise also

there is no question of malice against the writ petitioner

since in the selection process of year 2015 the case of the

writ petitioner was considered and was granted promotion

to the higher post, as such contention has been raised that

if there was any mala fide there was no reason to declare

successful in the subsequent departmental examination.

Further contention has been raised that said expert

committee has since re-evaluated and awarded more 8

marks, which in total comes to 38 but even then he could

not be declared successful as the last successful candidate

secured 40 marks, therefore, there is no fault in the

process of selection.

Learned counsel for the respondents on the basis of

aforesaid submission has submitted that the order passed

by the learned Single Judge requires no interference.

14. We have heard learned counsel for the parties,

perused the documents available on record as also the

finding recorded by learned Single Judge.

15. The issue which has been raised on behalf of

appellant regarding unsuccess in the selection process

initiated for the purpose of grant of promotion in the year

2012. In the said selection process, the writ petitioner was

awarded 30 marks and was declared unsuccessful since

the last selected candidate obtained 40 marks. The writ

petitioner on apprehension that such lesser marked ought

not to have been awarded to him requested copy of answer-

sheet by submitting application under Right to Information

Act and when he succeeded in getting copy of answer-sheet

he found that answer of question no. 4 has not been

evaluated, upon which, an expert committee was

constituted consisting of three members for evaluation of

answer-script of question no. 4, in which he was awarded 8

marks, thereby he obtained in total 38 marks but even then

also he could not be declared successful as the last selected

candidate has obtained 40 marks.

The writ petitioner has raised the issue of malice

and prejudice against the members of expert committee

since in the departmental proceeding he has deposed

against one of the members under the SC/ST Atrocities

Act, in which, the said member was awarded punishment,

therefore constitution of committee consisting of three

members has shown malice and prejudice against the

petitioner and did not take proper evaluation.

Much emphasis has been given that aforesaid

aspect of the matter since has not been taken into

consideration by the learned Single Judge, the impugned

order suffers from patent illegality.

16. It is admitted fact, as would appear from the

material available on record, that the pleading has been

made leveling allegation of prejudice and malice but the

position of law is well settled that leveling allegation of

prejudice and malice is easy to be leveled but proving of it

is difficult.

17. It is also settled position of law that the allegation of

mala fide, malice or prejudice since is made by a party

concerned against anyone the requirement of law is to

implead such party/person by name so as to the concerned

on being noticed be afforded with an opportunity to defend

one's case of malice.

18. Admittedly, herein the members of the expert

committee has not been made party to the proceeding (writ

petition) and therefore, according to considered view of this

Court aforesaid allegation in absence of party concerned

cannot be adjudicated. Further question is that when the

expert committee was constituted and eight marks was

awarded out of 20 marks then it cannot simply be said that

the expert committee due to malice and prejudice has

awarded only 8 marks so that the petitioner could not

obtain the minimum marks which the last selected

candidate has secured.

19. It further appears that in the selection process of

the year 2015, the writ petitioner has been declared to be

successful and was granted promotion, as would appear

from the impugned order that there is reference of passing

of writ petitioner of the passing in the departmental

examination in the year 2015 for the said post.

20. Learned counsel for the appellant has given

emphasis to issue a direction for re-evaluation of the

answer-sheet in particular answer of question no. 4 which

has been evaluated by expert committee, against whom the

allegation of malice has been made by the petitioner.

21. The question herein is that whether the High Court

sitting under Article 226 of the Constitution of India can

issue direction for re-evaluation of the answer-sheet.

22. The law is well settled that there cannot be direction

for re-evaluation of the answer-sheet, as has been held by

Hon'ble Apex Court in the judgment rendered in Ran Vijay

Singh & Ors v. State of U.P. & Ors [(2018) 2 SCC 357]

in particular at paragraph 31, which reads as under:

"31. On our part we may add that sympathy or compassion does not play any role in the matter of directing or not directing re-evaluation of an answer sheet. If an error is committed by the examination authority, the complete body of candidates suffers. The entire examination process does not deserve to be derailed only because some candidates are disappointed or dissatisfied or perceive some injustice having been caused to them by an erroneous question or an erroneous answer. All candidates suffer equally, though some might suffer more but that cannot be helped since mathematical precision is not always possible. This Court has

shown one way out of an impasse -- exclude the suspect or offending question."

However, in this case, order of re-evaluation has

been passed by the respondents-authority itself and not by

Court of law, on the basis of information gathered by the

petitioner.

23. This Court, considering the law as has been settled

regarding issuance of direction under Article 226 of the

Constitution of India in the matter of issuance of direction

for re-evaluation of answer-sheet, is of the view that no

direction can be passed.

24. This Court, on the basis of aforesaid facts that the

expert committee has already re-evaluated the answer-

sheet even then the writ petitioner has found to have