Supreme Court of India
H.P. PUBLIC SERVICE COMMISSIONversusMUKESH THAKUR & ANR.
- Citation
- 2010 INSC 330
- Decided
- 25 May 2010
- Disposal
- Appeal(s) allowed
- Bench
- B S CHAUHAN
Holding
A court cannot usurp the role of the statutory authority by ordering re‑evaluation of answer sheets or by issuing a blanket restraining order when the governing rules provide no such power.
Summary
The Himachal Pradesh Public Service Commission advertised 13 vacancies for Civil Judge (Junior Division) and conducted a written examination. Respondent No.1, Mukesh Thakur, secured the required aggregate marks but failed to obtain the mandatory 45% in the Civil Law‑II paper, and was therefore not called for interview. He filed a writ petition seeking re‑evaluation of his answer sheet and appointment; the High Court examined his answer sheet, ordered a re‑evaluation, and directed that his appointment be made, also issuing a blanket order restraining similar petitions. The Supreme Court held that the High Court had exceeded its jurisdiction by assuming the role of the statutory examiner and by issuing a general restraining order, especially since the applicable Rules and Regulations contain no provision for re‑evaluation. It further observed that courts cannot direct re‑evaluation in the absence of a statutory mandate and that equitable relief should be tailored to individual cases rather than imposed by a sweeping order. Consequently, the Supreme Court set aside the High Court’s judgment and allowed the appeal, dismissing the appointment order.
Issues considered
- Whether a court can assume the function of the statutory authority and examine answer sheets for re‑evaluation in a public service examination.
- Whether a court may issue a general order restraining all aggrieved candidates from filing writ petitions on similar grounds.
- Whether, in the absence of any statutory provision, a court can direct re‑evaluation of answer books.
Legislation cited
Subjects
service lawjudicial servicere‑evaluationwrit petitionappointmentstatutory authorityArticle 226equitable relief
Judgment
[2010) 7 S.C.R. 189
H.P. PUBLIC SERVICE COMMISSION A
V.
MUKESH THAKUR & ANR.
(Civil Appeal No. 907 of 2006)
MAY 25, 2010
B
[DR. 8.5. CHAUHAN AND SWATANTER KUMAR, JJ.)
Service Law:
Judicial Service: c
. '\ "
Appointment - Written exafrination - Re-evaluation of
answer-sheets of writ petitioner .:.. Directed by High Court -
After receipt of marks on re-(3valuation, High Court directing
appointment letter to be issuec/, to writ petitioner- Held: 9ourts, .
can not take upon themselv~~"th,e task of statutory authorities
0
- Admittedly, the candidate c~lp not secure qualifying marks
in the paper concerned - It was not permissible for High
Court to itself examine the question paper and answer sheets
- Further, in absence of any statutory provision, Court should
not generally direct re-evaluation - Judgment of High Court E
set aside - Himachal Pradesh Judicial Service (Syllabus and
A/location of Marks) Regulations, 2005 - Regulation 6 -
Himachal Pradesh Judicial Service Rules, 2004 -
Constitution of India, 1950 - Artic/0; 226.,
F
Constitution of India, 1950:
Article 226 - Writ petitiOlJ - Restraint on the remedy by
High Court - In a writ petition filed by a candidate who failed
to secure qualifying marks and was not called for interview, G
High Court passing a general order restraining other
aggrieved persons from approaching the Court, by filing writ
petition on any ground - Held: Such an order'not justified,
-particularly, when the Court has competence to grant
189 H
190 SUPREME COURT REPORTS [201 O] 7 S.C.R.
A equitable relief to persons even if they are not before the
Court, more so, when it has also power to mould the relief in
a particular fact-situation - Service Law - Judicial Service.
Respondent No.1, pursuant to the advertisement
dated 2.4.2005, appeared in the written examination for
8
selection of Civil Judge (Junior Division) in the State of
Himachal Pradesh. Though he secured 50% marks in
aggregate, but failed to secure 45% marks in the paper
of Civil Law-II and, therefore, was not called for interview.
C He filed a writ petition and the High Court after examining
his answer-sheets directed for re-evaluation thereof. On
receipt of the marks consequent upon such re-
evaluation, the High Court disposed of the writ-petition
directing that appointment letter be issued to respondent
no.1. It further directed that no other petition on the same
D or similar grounds would be entertained. Aggrieved, the
Himachal Pradesh Public Service Commission filed the
appeals.
Allowing the appeals, the Court
E
HELD: 1.1. It is settled legal proposition that courts
cannot take upon themselves the task of the statutory
authorities. In the instant case, there is no dispute so far
as the process of evaluation of the answer sheets is
F concerned. Respor:ident No. 1, admittedly, could not
secure qualifying marks in one paper. 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
G question or evaluation of the answer, it could be for all
the candidates appearing for the examination and not for
respondent no.1 alone. [Para 11, 14 and 19] [198-D; 197-
G-H; 197-D; 199-F-G]
H Government of Orissa & Anr. Vs. Hanichal Roy & Anr.
H.P. PUBLIC SERVICE COMMISSION v. MUKESH 191
THAKUR & ANR.
(1998) 6 SCC 626; Life Insurance Corporation of India Vs. A
Asha Ramchandra Ambedkar (Mrs.) & Anr., (1994) 2 SCR
163 = AIR 1994 SC 2148; A. Uma~ani Vs.
Registrar, Cooperative Societies & Ors., (2004) 7 SCC 112;
Hindustan Shipyard Ltd. & Ors. Vs. Dr P. Sambasiva Rao &
ORS. (1996) 7 SCC 499 and G. Veerappa Pillai Vs. Raman 8
and Raman Ltd., (1952) SCR 583 =AIR 1952 SC 192, relied
on.
1.2. The issue of re~evaluation of answer book is no
more res integra. In the absence of any provision under C
the statute or statutory rules/regulations, the courts
should not generally direct re-evaluation. The Himachal
Pradesh Judicial Service (Syllabus and Allocation of
Marks) Regulations, 2005 do not contain any provision
for re-evaluation. [Paras 11, 24, 27) (201-D; 209-8; 197-C]
D
Maharashtra State Board of Secondary and Higher
Secondary Education & Anr. Vs. Paritosh Bhupesh
Kurmarsheth etc.etc. (1985) 1 SCR 29 =AIR 1984 SC 1543;
Pramod Kumar Srivastava Vs. Chairman, Bihar Public
Service Commission, Patna & Ors, AIR 2004 SC 4116; Dr. E
Muneeb UI Rehman Haroon & Ors. Vs. Government of
Jammu & Kashmir State & Ors. (1985) 1 SCR 344 = 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 & F
Anr. (2006) 8 Suppl. SCR 1143 = (2007) 1 SCC 603; The
Secretary, West Bengal Council of Higher Secondary
Educ9tion Vs. Ayan Das & Ors. (2007) 10 SCR 464 =AIR
2007 SC 3098 and Sahiti & Ors. Vs. Chancellor, Dr. N. T. R.
University of Health Sciences & Ors. (2008) 14 SCR 1032 = G
(2009) 1 sec 599, relied on.
1.3. In the facts and circumstances of the case, the
judgment and order passed by the High Court dated
.26.12.2005 is set aside. [Para 31) (203-G]
H
192 SUPREME COURT REPORTS [2010] 7 S.C.R.
A 2. The direction not to entertain any petition on
similar grounds has been passed by the High Court
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
B 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
candidate.s having roll numbers 1096 and 1476 had also
secured 89' marks in the said paper. Candidate having roll
C number 1096 had secured 462 marks, i.e., more than 50%
in aggregate. Therefore, depriving him of the benefit 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
D even if they are not before the Court. More so, Court has
also power to mould the relief in a particular fact situation.
[Para 22) [200-C-G]
State of Kera/a Vs. Kumari T.P. Roshana & Ors., (1979)
2 SCR 974 =AIR 1979 SC 765; Ajay Hasia etc. Vs. Khalid
E Mujib Sehravardi & Ors. etc. (1981) 2 SCR 79 =AIR 1981
SC 487; Punjab Engineering College, Chandigarh Vs.
Sanjay Gulati & Ors., AIR 1983 SC 580; Thaper Institute of
Engineering & Technology, Patia/a Vs. Abhinav Taneja & Ors.
(1990) 2 SCR 394 = (1990) 3 SCC 468; Sharwan Kumar &
F Ors Vs. Director General of Health Services & Ors, AIR 1992
SC 2202 and K. C. Sharma & Ors. Vs. Union of India & Ors.,
(1997) 3 Suppl. SCR 87 = AIR 1997 SC 3588, relied on.
Case Law Reference:
G (1996) 1 sec 499 relied on Para 15
(1998) 6 sec 626 relied on Para 16
(1994) 2 SCR 163 relied on Para 17
(2004) 1 sec 112 relied on Para 17
H
H.P. PUBLIC SERVICE COMMISSION v. MUKESH 193
THAKUR & ANR.
(1952) SCR 583 relied on Para 18 A
(1979) 2 SCR 974 relied on Para 22
(1981) 2 SCR 79 relied on Para 22
AIR 1983 SC 580 relied on Para 22
B
(1990) 2 SCR 394 relied on Para 22
AIR 1992 SC 2202 relied on Para 22
(1997) 3 Suppl. SCR 87 relied on Para 22
c
(1985) 1 SCR 29 relied on Para 24
AIR 2004 SC 4116 relied on Para 25
(1985) 1 SCR 344 relied on Para 26
(2004) 13 sec 383 relied on Para 26 D
(2006) 8 Suppl. SCR 1143 relied on Para 26
(2007) 10 SCR 464 relied on Para 26
(2008) 14 SCR 1032 relied on Para 26 E
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 907
of 2006.
From the Judgment & Order dated 22.11.2005 of the t-:igh
Court of Himachal Pradesh at Shimla in C.W.P. No. 1007 of F
2005.
WITH
C.A. No. 897 of 2006.
G
Anil Nag for the Appellant.
L.N. Rao, Binu Tamta, Naresh Kumar Sharma (NP) for the
Respondents.
H
194 SUPREME COURT REF'ORTS (2010] 7 s.c R.
A The Judgment of the C:.Jurt was delivered by
DR. B. S. CHAUHAN, J. 1. Appeal 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
B 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.
2. Facts and circumstances giving rise to these appeals
C 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
D advertisement along with other candidates. The result of the
written papers was declared on 04.09.2005. Respondent 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.
E 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
F it and the appellant produced the answer sheets of that paper
before the High Court on 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
G some inconsistency in framing the Question Nos.5 and 8 and
in evaluation of the answer to the said questions.
3. 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
H Court to dispose of the writ petition expeditiously.
H.P. PUBLIC SERVICE COMMISSION v. MUKESH 195
THAKUR & ANR. [DR. S.S. CHAUHAN , J.]
4. The appellant filed the reply before the High Court A
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 s
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.
5. The High Court, on 22.11.2005, further passed an order
to send the answer sheet of the said respondent to another C
examiner who could be in a rank of a Reader in Law in
Himachal Pradesh University for revaluation. In the meanwnile,
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 D
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 Commission. E
6. Before proceeding further, it may be pertinent to
mention here that this Court, vide o;der 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 F
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.
7. Shri Anil Nag, learned counsel for the appellant, has G
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 H
196 SUPREME COURT REPORTS [2010) 7 S.C.R.
A 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,
B 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
C 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.
D 9. We have considered the rival submissions made on
behalf of the counsel for the parties and perused the record.
10. Regulations, 2005 were notified by the Himachal
Pradesh High Court providing for selection on the post of Civil
E 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
F 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
G 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.
Regulation 6 (ii) - No candidate would be considered to
have qualified the written test unless he obtains 50%
H
H.P. PUBLIC SERVICE COMMISSION v. MUKESH 197
THAKUR & ANR. [DR. B.S. CHAUHAN , J.]
marks in aggregate in all paper and at least 33% marks A
in Language paper i.e. Hindi in Devnagri script."
The advertisement clarified as under :-
"Re-evaluation or Rechecking of the answer books
(Scripts) is not permissible nor the Commission enters into B
correspondence in this behalf."
11. Therefore, 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 c
provision for revaluation. Respondent No. 1 admittedly could
not secure qualifying marks in one paper as required therein.
12. In the facts and circumstances of the aforesaid case,
three basic questions arise for consideration of this Court:-
D
(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.
E
(ii) 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 approach the court, particularly, when some
F
other candidates had secured the same marks, i.e.,
89 and stood disqualified for being called for
interview but could not approach the court.
(iii) Whether in absence of any statutory provision for
revaluation, the court could direct for revaluation. G
13. In the instant case, the High Court has dealt with
Question Nos.5(a) & (b) and 8(a) & (b) and made the following
observations:-
H
198 SUPREME COURT REPORTS [2010] 7 S.C.R.
A "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
B 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 beer~ awarried 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
c an&viJer 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
D upon itself the task of the Statutory Authorities.
15. In Hindustan Shipyard Ltd. & Ors. Vs. Dr P.
Sambasiva Rao & Ors., (1996) 7 SCC 499, this Court held
that in a case where the relief of regularisation is sought by
E 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 is the issuance
of direction to the authority concerned to constitute a Selection
Committee to consider the matter of regularisation of the ad
F hoc employees as per the Rules for regular appointment for the
reason that the regularisation is not automatic, it depends on
availability of number of 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
G 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.
H 16. In Government of Orissa & Anr. Vs. Hanicha/ Roy &
H.P. PUBLIC SERVICE COMMISSION v. MUKESH 199
THAKUR & ANR. [DR. B.S. CHAUHAN , J.]
Anr., (1998) 6 sec 626, this Court considered the case A
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 B
0pinion in view of the statutory provisions as to whether the
relaxation was required in the facts and circumstances of the
case. Issuing such a direction by the Court was illegal and
impermissible.
17. Similar view has been reiterated by this Court in Life C
Insurance Corporation of India Vs. Asha Ramchandra
Ambekar (Mrs.) & Anr., AIR 1994 SC 2148; and A. Umarani
Vs. Registrar, Cooperative Societies & Ors., (2004) 7 SCC
112.
D
18. In G. Veerappa Pillai Vs. Raman and Raman Ltd.,
AIR 1952 SC 192, 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 the Transport Authority, but issuing E
the direction for grant of permits was clearly in excess of its
powers and jurisdiction.
19. In 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 F
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 G
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.
H
200 SUPREME COURT REPORTS (2010] 7 S.C.R.
A 20. Therefore, we are of the considered opinion that such
a course was not permissible to the High Court.
21. So far as the second issue is concerned, the court had
issued a direction while disposing of the writ petition observing
as under:-
8
"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."
c 22. Such 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 !aches rather than issuing a direction that no such
0 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
E could not approach the court cannot be justified, particularly in
view of the fact that Court has competence to grant equitable
relief to persons even if they are not before the Court. (See
State of Kera/a Vs. Kumari T.P. Roshana & Ors., AIR 1979
SC 765; Ajay Hasia etc. Vs. Khalid Mujib Sehravardi & Ors.
etc., AIR 1981 SC 487; Punjab Engineering College,
F Chandigarh Vs. Sanjay Gulati & Ors., AIR 1983 SC 580;
Thaper Institute of Engineering & Technology, Patiala Vs.
Abhinav Taneja & Ors.; (1990) 3 SCC 468; Sharwan Kumar
& Ors Vs. Director General of Health Services & Ors, AIR
1992 SC 2202; and K. C Sharma & Ors. Vs. Union of India &
G Ors., AIR 1997 SC 3588). More so, Court has also power to
mould the relief in a particular fact-situation.
23. Situation will be entirely different where the court deals
with the issue of admission in mid-academic session. This
H Court has time and again said that it is not permissible for the
H.P. PUB(IC SERVICE COMMISSION v. MUKESH 201
THAKUR & ANR. [DR. B.S. CHAUHAN , J.]
Courts to issue direction for admission in mid-academic A
session. The reason for it has been that admission to a student
at a belated stage disturbs other students, who have already
been pu•suing 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. B
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 Dr. Pramod Kumar Joshi Vs. Medical Council of India
& Ors., (1991) 2 SCC 179; State of Uttar Pradesh & Ors. Vs. c
Dr. Anupam Gupta etc., AIR 1992 SC 932; State of Punjab &
Ors. Vs. Renuka Sing/a & Ors., AIR 1994 SC 595; Medical
Council of India Vs. Madhu Singh & Ors., (2002) 7 SCC 258;
and Mridul Dhar (Minor) & Anr. Vs. Union of India & Ors.,
(2005) 2 sec 65.
D
-
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 E
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 F
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, G
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 H
2U2 SUPREME COURT REPORTS [2010] 7 S.C.R.
A 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
B 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. ........ "
C 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
D 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
E 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
F 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 re-evaluation of his marks."
(emphasis added)
26. A similar view has been reiterated in Dr. Muneeb UI
G 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,
H West Bengal Council of Higher Secondary Education Vs.
H.P. PUBLIC SERVICE COMMISSION v. MUKESH 203
l HAKUR & ANR. [DR. B.S. CHAUHAN , J.]
Ayan Das & Ors. AIR 2007 SC 3098; and Sahiti & Ors. Vs. A
Chancellor, Dr. N. TR. University of Health Sciences & Ors.
(2009) 1 sec 599.
27. Thus, the law on the subject emerges to the effect that
in absence of any provision under the Statute or Statutory Rules/ B
Regulations, the Court should not generally direct revaluation.
28. In the instant case, undoubtedly, the High Court issued
direction for revaluation and the respondent No.1 secured 119
marks in revaluation, making him eligible to be called for
interview and further for appointment, in case, he succeeds in C
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.
D
29. We 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
E
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. F
30. Even on any other ground, the respondent No.1 cannot
be offered appointment for want of vacancy.
31. The facts and circumstances of the case, warrant G
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.
R.P. Appeals allowed.
H
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