Service Commission Vs. Mukesh Thakur & ANR.  INSC 416 (25 May 2010)
SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION Civil Appeal No. 907 of
2006 H.P. Public Service Commission ..........Appellant Versus Mukesh Thakur &
Anr. .........Respondents With Civil Appeal No. 897 of 2006 H.P. Public Service
Commission ..........Appellant Versus Mukesh Thakur & Anr.
Dr. B. S.
No.907 of 2006 is arising out of the final judgment and order dated 26.12.2005
passed by the High Court of Himachal Pradesh at Shimla in C.W.P. No.1007 of
2005. While Civil Appeal No.897 of 2006 is against the interim order dated
22.11.2005 passed in the said writ petition. As the interim order merges into
the final order, Civil Appeal No. 897 of 2006 has lost its efficacy.
and circumstances giving rise to these appeals are that the appellant herein,
H.P. Public Service Commission (hereinafter called as, "the
Commission") advertised 13 vacancies of the Civil Judge (Junior Division)
on 2nd April, 2005, providing the eligibility criteria and mode of selection.
The respondent No.1 applied in pursuance of the said advertisement along with
result of the written papers was declared on 04.09.2005.
No.1 was not found eligible to be called for interview/viva-voce for the reason
that he failed to secure 45% marks in the paper of Civil Law - II, though he
had secured 50% marks in aggregate. Being aggrieved, the said respondent filed
writ petition seeking direction for revaluation of the paper of Civil Law - II
and appointment to the said post as a consequential relief. The High Court vide
order dated 3rd October, 2005 directed the appellant- Commission to produce his
answer sheets before it and the appellant produced the answer sheets of that
paper before the High Court on 2 05.10.2005. The High Court passed an order
dated 05.10.2005 directing the appellant to arrange for a special interview for
the said respondent in view of the fact that the High Court was of the view
that there had been some inconsistency in framing the Question Nos.5 and 8 and
in evaluation of the answer to the said questions.
However, the operation of the said interim order was stayed by this Court vide
order dated 7.11.2005 in SLP (C) 21511 of 2005 and further direction was issued
to the High Court to dispose of the writ petition expeditiously.
appellant filed the reply before the High Court submitting that there was no
provision of revaluation in the Himachal Pradesh Judicial Service Rules, 2004
(hereinafter called the "Rules 2004") as well as in Himachal Pradesh
Judicial Service (Syllabus and Allocation of Marks) Regulations, 2005
(hereinafter called "Regulations 2005") and as the respondent No.1
failed to secure 90, qualifying marks in the said paper, he was not eligible to
be called for interview or to be considered for appointment.
High Court, on 22.11.2005, further passed an order to send the answer sheet of
the said respondent to another examiner who could be in a rank of a Reader in
Law in Himachal Pradesh University for revaluation. In the meanwhile, appellant
also challenged the Order dated 22.11.2005 before this Court. The examiner
appointed under the said order awarded him 119 marks. Thus, the High Court
disposed of the writ petition on 26.12.2005 directing the Commission to issue
Letter of Appointment to the respondent No.1. The court further directed that
no other petition on the same and similar grounds would be entertained. The said
order has also been challenged in Civil Appeal No. 907 of 2006 by the
proceeding further, it may be pertinent to mention here that this Court, vide
order dated 13th January, 2006, passed an order for fresh re-valuation of the
answer sheets of the respondent No.1 in Civil Law-II by the eminent Professor
of Law with the consent of the counsel for the parties. In pursuance of the
said order, his answer sheet was sent to an eminent Professor, who examined the
same and awarded him only 82 marks in the said paper.
Anil Nag, learned counsel for the appellant, has submitted that the Rules 2004
and Regulations, 2005 do not provide for revaluation or rechecking of the
answer sheets. Comparative merit of the candidates is assessed and if there is
some inconsistency in framing of the questions/marking of a particular
question, it would be the same in the case of all the candidates and therefore,
it is not permissible for the court to direct revaluation of the answer sheets
of a particular candidate. In such an eventuality, the answer sheets of all the
candidates should be revalued. The respondent No.1 admittedly failed to secure
the qualifying marks in one paper, therefore, the judgment and order of the
High Court is liable to be set aside.
8. On the
contrary, Mr. L.N. Rao, learned Senior counsel for the respondent has submitted
that as the High Court found inconsistency in question Nos.5 and 8, it was
justified to direct for revaluation and as the respondent No.1 secured 119
marks, being very high in merit list i.e. at No.2, no fault could be found with
the order of the High Court. Thus, appeals are liable to be dismissed.
have considered the rival submissions made on behalf of the counsel for the
parties and perused the record.
Regulations, 2005 were notified by the Himachal Pradesh High Court providing
for selection on the post of Civil Judge (J.D.), providing therein three
papers, namely, Civil Law - I, Civil Law - II and Criminal Law and each paper
to carry 200 marks. Besides, paper-IV consisted of English Composition (200
marks), Language (100 marks) followed by Viva-Voce (100 marks). Regulation 6
(i) made it mandatory for the candidate to secure at least 45% in each paper
and Regulation 6 (ii) further stipulated that the candidate must secure 50%
marks in aggregate to qualify the written test. The relevant Regulations 6(i)
and 6(ii) are reproduced below :- "Regulation 6(i) - No candidate shall be
credited with any marks in any paper unless he obtains at least 45% in that
paper, except Hindi language paper (Paper V) in which candidate should obtain
at least 33% marks.
6 (ii) - No candidate would be considered to have qualified the written test
unless he obtains 50% marks in aggregate in all paper and at least 33% marks in
Language paper i.e. Hindi in Devnagri script."
advertisement clarified as under: - "Re-evaluation or Rechecking of the
answer books (Scripts) is not permissible nor the Commission enters into
correspondence in this behalf."
there is no dispute so far as the process of evaluation of the answer sheets is
concerned under the Regulations, 2005. The Regulations do not contain any
provision for revaluation.
No. 1 admittedly could not secure qualifying marks in one paper as required
the facts and circumstances of the aforesaid case, three basic questions arise
for consideration of this Court:- (i) As to whether it is permissible for the
court to take the task of Examiner/Selection Board upon itself and examine
discrepancies and inconsistencies in the questions paper and valuation thereof.
Whether Court has the power to pass a general order restraining the persons
aggrieved to approach the court by filing a writ petition on any ground and
depriving them from their constitutional rights to 7 approach the court,
particularly, when some other candidates had secured the same marks, i.e., 89
and stood disqualified for being called for interview but could not approach
Whether in absence of any statutory provision for revaluation, the court could
direct for revaluation.
the instant case, the High Court has dealt with Question Nos.5(a) & (b) and
8(a) & (b) and made the following observations:- "We perused answer to
Question No.5(a) and 5(b) and found that the petitioner has attempted both
these answers correctly and the answer to Question No.5(b) was as complete as
it could be. Despite the petitioner having attempted a better answer to
Question No.5(b) than the answer to Question No.5(a), the petitioner has been
awarded 6 marks out of 10 in answer to Question No.5(b) whereas he has been
awarded 8 marks in answer to Question No.5(a). Similarly in answer to Question
No.8(a) and 8(b) the petitioner has fared better in attempting an answer to
Question No.8(b) rather than answer to Question No.8(a) and yet he got 4 marks
out of 10 marks in answer to Question No.8(b) whereas he got 5 marks out of 10
marks in answer to Question No.8(a)."
14. It is
settled legal proposition that the court cannot take upon itself the task of
the Statutory Authorities.
Ors., (1996) 7 SCC 499, this Court held that in a case where the relief of
regularisation is sought by employees working for a long time on ad hoc basis,
it is not desirable for the Court to issue direction for regularisation
straightaway. The proper relief in such cases for issuing direction to the
authority concerned to constitute a Selection Committee to consider the matter
of regularisation of the ad hoc employees as per the Rules for regular
appointment for the reason that the regularisation is not automatic, it depends
on availability of number vacancies, suitability and eligibility of the ad hoc
appointee and particularly as to whether the ad hoc appointee had an
eligibility for appointment on the date of initial as ad hoc and while
considering the case of regularisation, the Rules have to be strictly adhered
to as dispensing with the Rules is totally impermissible in law. In certain
cases, even the consultation with the Public Service Commission may be
required, therefore, such a direction cannot be issued.
6 SCC 626, this Court considered the case wherein the High Court had granted
relaxation of service conditions. This Court held that the High Court could not
take upon itself the task of the Statutory Authority. The only order which High
Court could have passed, was to direct the Government to consider his case for
relaxation forming an opinion in view of the statutory provisions as to whether
the relaxation was required in the facts and circumstances of the case.
such a direction by the Court was illegal and impermissible.
Similar view has been reiterated by this Court in Life Insurance Cooperative
Societies & Ors., (2004) 7 SCC 112.
the Constitution Bench of this Court while considering the case for grant of
permits under the provisions of Motor Vehicles Act, 1939, held that High Court
ought to have quashed the proceedings of 10 the Transport Authority, but
issuing the direction for grant of permits was clearly in excess of its powers
view of the above, it was not permissible for the High Court to examine the
question paper and answer sheets itself, particularly, when the Commission had
assessed the inter-se merit of the candidates. If there was a discrepancy in
framing the question or evaluation of the answer, it could be for all the
candidates appearing for the examination and not for respondent no.1 only. It
is a matter of chance that the High Court was examining the answer sheets
relating to law. Had it been other subjects like physics, chemistry and
mathematics, we are unable to understand as to whether such a course could have
been adopted by the High Court.
Therefore, we are of the considered opinion that such a course was not
permissible to the High Court.
far as the second issue is concerned, the court had issued a direction while
disposing of the writ petition observing as under:- 11 "Therefore, we
direct that in future, under the above referred circumstances no other petition
on same and similar grounds shall be entertained by this Court."
a direction has been passed apparently in view of the fact that fresh selection
proceedings had commenced for the subsequent year. Thus, in such circumstances,
it could be possible for the court to reject the same on the ground of delay
and laches rather than issuing a direction that no such petition shall be
filed, particularly, in view of the fact that candidates having roll numbers
1096 and 1476 had also secured 89 marks in the said paper. Candidate having
roll number 1096 had secured 462 marks, i.e., more than 50% in aggregate.
Therefore, depriving him only on the ground that he could not approach the
court cannot be justified, particularly in view of the fact that Court has
competence to grant equitable relief to persons Kumari T.P. Roshana & Ors.,
AIR 1979 SC 765; Ajay Hasia etc.
1983 SC 580; Thaper Institute of Engineering & 12 Union of India &
Ors., AIR 1997 SC 3588). More so, Court has also power to mould the relief in a
Situation will be entirely different where the court deals with the issue of
admission in mid-academic session. This Court has time and again said that it
is not permissible for the Courts to issue direction for admission in
mid-academic session. The reason for it has been that admission to a student at
a belated stage disturbs other students, who have already been pursuing the
course and such a student would not be able to complete the required attendance
in theory as well as in practical classes. Quality of education cannot be
compromised. The students taking admission at a belated stage may not be able
to complete the courses in the limited period. In this connection reference may
be made to the decisions of this Court in 13 Madhu Singh & Ors., (2002) 7
SCC 258; and Mridul Dhar (Minor)
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 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:
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...
Court cannot sit in judgment over the 14 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
view has been approved and relied upon and re-iterated Public Service
Commission, Patna & Ors, AIR 2004 SC 4116 observing as under:
the relevant rules of the Commission, there is no provision wherein a candidate
may be entitled to ask for re- evaluation 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-
15 evaluation of answer-books in the relevant rules, no candidate in an
examination has got any right whatsoever to claim or ask for re- evaluation of
his marks." (emphasis added)
similar view has been reiterated in Dr. Muneeb Ul Rehman Pravas Ranjan Panda
& Anr. (2004) 13 SCC 383; President, Anr. (2007) 1 SCC 603; The Secretary,
West Bengal Council of Health Sciences & Ors. (2009) 1 SCC 599.
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.
the instant case, undoubtedly, the High Court issued direction for revaluation
and the respondent No.1 secured 119 marks 16 in revaluation, making him
eligible to be called for interview and further for appointment, in case, he
succeeds in interview. But the order of the High Court was kept in abeyance by
this Court for having fresh revaluation by an eminent Professor, who had
revalued the answer sheets and awarded only 82 marks to the respondent No.1.
have asked Mr. Nag, Ld. Counsel to take instruction from the Commission and
apprise the Court as to whether any vacancy advertised in 2005 remained
unfilled. After taking instruction, Shri Nag informed us that in that selection
only 5 posts could be filled up though 13 vacancies had been advertised.
However, remaining vacancies had been carried forward and re-advertised and had
been filled in 2006 itself. Subsequent to the selection involved herein, three
more selections have been held. Respondent No.1 has appeared in 2 subsequent
selections but could not succeed. Now he has become over-aged also.
on any other ground, the respondent No.1 cannot be offered appointment for want
facts and circumstances of the case, warrant review of the judgment and order
of the High Court dated 26.12.2005. The appeals are allowed. Judgment and order
dated 26.12.2005 is set aside. No costs.
.........................................J. (Dr. B.S. CHAUHAN)