Reportable

IN THE 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.      ……...Respondents

J U D G M E N T   

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 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 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  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.  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  

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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.   

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 Court to dispose of the writ  

petition expeditiously.

4. The 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.   

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5. The 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 Commission.   

6. Before 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.   

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7. Shri 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.

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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  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.   

Regulation  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.”   

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The 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.”

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 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:-

(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.  

(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  

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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 the court.

(iii) Whether  in  absence  of  any  statutory  provision  for  

revaluation, the court could direct for revaluation.

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:-

“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).”

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14. It  is settled legal proposition that the court  cannot take 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 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  

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 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.

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16. In  Government of Orissa & Anr. Vs.  Hanichal Roy & Anr.,  

(1998) 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.  

Issuing such a direction by the Court was illegal and impermissible.

17. Similar view has been reiterated by this Court in Life 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.

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  

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the Transport Authority, but issuing 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  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.

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:-

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“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.”   

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 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  

even  if  they  are  not  before  the  Court.  (See  State  of  Kerala 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,  Chandigarh  Vs.  Sanjay  Gulati  &  

Ors.,  AIR  1983  SC  580;   Thaper  Institute  of  Engineering  &  

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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 & 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 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  

Dr.  Pramod Kumar Joshi  Vs. Medical  Council  of  India & Ors.,  

(1991) 2 SCC 179; State of Uttar Pradesh & Ors. Vs. Dr. Anupam  

Gupta etc.,  AIR 1992 SC 932; State of Punjab & Ors. Vs. Renuka  

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Singla & 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 SCC 65.      

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  

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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 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-

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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 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.  

28. In  the  instant  case,  undoubtedly,  the  High  Court  issued  

direction for revaluation and the respondent No.1 secured 119 marks  

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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.  

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  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.

30. Even  on  any  other  ground,  the  respondent  No.1  cannot  be  

offered appointment for want of vacancy.  

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31. The 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)

…………………………………..J. (SWATANTER KUMAR)

New Delhi, May  25, 2010

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