Orissa High Court
Pratikshya Mukherjee vs The Secretary on 1 September, 2021
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P.(C) No. 24974 of 2021
Pratikshya Mukherjee .... Petitioner
Mr. J. Dash, Adv.
-Versus -
The Secretary, Institute of .... Opposite Party
Cost Accountants of India .
(ICAI)
CORAM:
DR. JUSTICE B.R. SARANGI
ORDER
01.09.2021
Order No. This matter is taken up through hybrid mode.
2. The petitioner has filed this writ petition seeking
direction to the opposite parties to evaluate the answers script
in respect of question nos.44, 45, 54, 55, 56 and 57 by a group
of eminent examiners.
3. When the matter was listed on 24.08.2021 for
admission, this Court made a query that whether any provision
is made available for revaluation of answer scripts or not.
Learned counsel for the petitioner sought time to produce
relevant documents. Today, learned counsel for the petitioner
fairly states that there is no provision for revaluation of
answer scripts. But he relied upon the judgment of the apex
Court in the case of High Court of Tripura through the
Registrar General v. Tirtha Sarathi Mukherjee (Civil Appeal
No.1264 of 2019 arising out of SLP (C) No.12624 of 2018),
paragraphs-18, 19 and 20 whereof reads thus:-
18. We have noticed the decisions of this Court.
Undoubtedly, a three Judge Bench has laid down that
there is no legal right to claim or ask for revaluation in
the absence of any provision for revaluation.
Undoubtedly, there is no provision. In fact, the High
Court in the impugned judgment has also proceeded on
the said basis. The first question which we would have to
answer is whether despite the absence of any provision,
are the courts completely denuded of power in the
exercise of the jurisdiction under Article 226 of the
Constitution to direct revaluation? It is true that the right
to seek a writ of mandamus is based on the existence of a
legal right and the corresponding duty with the
answering respondent to carry out the public duty. Thus,
as of right, it is clear that the first respondent could not
maintain either writ petition or the review petition
demanding holding of revaluation.
19. The question however arises whether even if
there is no legal right to demand revaluation as of right
could there arise circumstances which leaves the Court in
any doubt at all. A grave injustice may be occasioned to a
writ applicant in certain circumstances. The case may
arise where even though there is no provision for
revaluation it turns out that despite giving the correct
answer no marks are awarded. No doubt this must be
confined to a case where there is no dispute about the
correctness of the answer. Further, if there is any doubt,
the doubt should be resolved in favour of the examining
body rather than in favour of the candidate. The wide
power under Article 226 may continue to be available
even though there is no provision for revaluation in a
situation where a candidate despite having giving correct
answer and about which there cannot be even slightest
manner of doubt, he is treated as having given the wrong
answer and consequently the candidate is found
disentitled to any marks.
20. Should the second circumstance be
demonstrated to be present before the writ court, can the
writ court become helpless despite the vast reservoir of
power which it possesses? It is one thing to say that the
absence of provision for revaluation will not enable the
candidate to claim the right of evaluation as a matter of
right and another to say that in no circumstances
whatsoever where there is no provision for revaluation
will the writ court exercise its undoubted constitutional
powers? We reiterate that the situation can only be rare
and exceptional.
4. Mr. J. Dash, learned counsel for the petitioner
contended that the case of the petitioner is covered under the
rare and exceptional cases, as envisaged under paragraph-20
of the aforesaid judgment. Therefore, her case should be
considered by this Court in exercise of powers conferred
under Article 226 of the Constitution of India. Referring to
answer sheet in Paper-8 Cost Accounting, it is contended that
in respect of question nos.44 and 45, "zero" mark has been
awarded in favour of the petitioner out of 8 and 7 marks
respectively. Similarly, in respect of question nos.54, 55, 56
and 57, "zero" mark has been awarded as against total marks
2, 6, 1 and 6 respectively. It is contended that in the score card
in Paper-8 of Cost Accounting, as available at page-36 of the
writ petition, though as against other questions it has been
mentioned correct and wrong answers, but so far as question
nos.44, 45, 54, 55, 56 and 57, there is only "zero" has been
indicated without indicating the number of correct and wrong
answers. Thereby, it is contended that there is dispute with
regard to award of marks in respect of questions which have
been placed on record in Paper-8 of Cost Accounting, which
requires revaluation by the group of eminent examiners, as
prayed in the writ petition.
5. In the opinion of this Court, the matter requires
consideration.
6. Issue notice to the opposite parties.
7. Steps for service of notice on the opposite party by
speed post with A.D. be taken within three days. Office shall
send notice to the said opposite party fixing an early
returnable date.
Ashok (Dr. B.R. Sarangi)
Judge
