1

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

  CIVIL APPEAL NO(S).1264 OF 2019      (Arising out of SLP(C)No.12624 of 2018)

HIGH COURT OF TRIPURA THROUGH THE REGISTRAR GENERAL  ...APPELLANT(S)

VERSUS

TIRTHA SARATHI MUKHERJEE & ORS.    ...RESPONDENT(S)

JUDGMENT

K.M. JOSEPH, J.

1. The appeal by Special Leave is directed against

the order passed by the High Court of Gauhati dated

19.03.2018 in Review Petition No.21 of 2018. By the

impugned  order,  the  Review  Petition  filed  by  the

respondent  No.1  against  the  dismissal  of  his  Writ

Petition, has been allowed and the Court has directed

2

the re-evaluation of his answer papers in regard to the

selection to the post of Grade-I in Tripura Judicial

Service.  

2. By advertisement dated 18.01.2011, applications

were invited from practicing Advocates for appointment

as  Grade-I  in  Tripura  Judicial  Service.  3  vacancies

were  notified.  Pursuant  to  the  advertisement,

Respondent  No.1  appeared  in  preliminary  examination

held  on  12.06.2011.  The  results  were  declared  on

24.06.2011.  The  petitioner  along  with  16  other

candidates  were  shown  as  qualified.  The  main

examination was held on 30.07.2011 and 31.07.2011. The

written examination comprised of 3 papers. The result

of the main examination was declared on 29.09.2011 in

which Respondent No. 1 was declared as not qualified.

He  sought  disclosure  of  marks  under  the  Right  to

Information  Act,  2005.   However,  he  was  allowed  to

inspect his answer scripts on 01.11.2011.  It is the

case of the respondent No.1 that some correct answers

were found marked as incorrect.  He secured 175 marks

3

out  of  300.   Thus,  he  was  5  marks  short  to  be

shortlisted  for  appearing  for  the  interview  as  the

requirement was 60%. He filed Writ Petition No.1809 of

2012  seeking  re-evaluation  of  his  answer  papers  in

Papers I, II and III and declaring the decision holding

him  as  not  qualified  for  the  interview  as  null  and

void. The said Writ Petition came to be dismissed on

12.12.2012. The respondent filed Special Leave Petition

before this Court which was dismissed on 23.07.2013. It

is, thereafter, he filed the Review Petition. In the

Review Petition, the High Court finds that under the

2003 Rules, which apparently governed the conduct of

the  examination,  there  is  no  provision  for  re-

evaluation of answer scripts.  It was, however, found

that  there  is  no  prohibition  against  re-evaluation

provided it finds any patent error.  This may include

not awarding any marks for a correct answer or treating

a correct answer to be an incorrect answer. The Court,

no doubt notes it has to be bear in mind that it cannot

step into the shoes of the examiner and undertake the

4

exercise  of  re-evaluation  like  a  super  examiner.

Thereafter, the following finding is rendered:-

“25. We have gone through the answer scripts of the petitioner both in Paper- I and Paper-II. To us, answers given in respect  of  Question  Nos.  3  (xiii), 2(xviii)  and  3(xv)  of  Paper  II  which were  marked  as  incorrect  answers  and Question No.I(xiv) of Paper II for which no  marks  were  awarded  may  require  a relook. However, we hasten to add that we have not expressed any final opinion in this regard”.

3. Regarding the case set up by the petitioner

based on the dismissal of the Writ Petition, it was

found based on adjudication related to Paper-III and

that it did not adjudicate the grievance of respondent

No. 1 in respect of Papers I and II, as perhaps, it was

not  highlighted  by  the  respondent  No.1.  Noting  that

long  time  has  elapsed  the  Court  allowed  the  Writ

Petition and modified the Judgment by which the Writ

Petition  was  dismissed  and  the  Court  directed  the

Registrar  General  of  the  Tripura  High  Court  to  re-

evaluate the answer sheet scripts pertaining to Papers

II and III of the main examination re-evaluated. For

5

this  purpose,  the  answer  papers  in  the  custody  of

Gauhati  High  Court  was  to  be  transmitted  in  sealed

cover to the Registrar General, Tripura High Court.  

4. We have heard learned counsel for the appellant

and learned counsel appearing on behalf of respondent

No.1.

5. Learned counsel for the appellant would rely

upon the judgment of this Court in  K. Rajamouli Vs.

A.V.K.N. Swamy reported in 2001 (5) SCC 37.  As per the

said decision, it is contended that the Review Petition

in this case, was not maintainable. This is not a case,

where the Review Petition was filed before filing of

the  Special  Leave  Petition.  The  Review  Petition  was

filed after the filing of the Special Leave Petition

and  thereafter,  on  this  ground  alone,  the  Review

Petition should not have been entertained by the High

Court, runs the argument.

6

6. Secondly,  he  would  point  out  the  inordinate

delay with which the Review Petition was filed. The

Special Leave Petition was dismissed as we have noted

in 2013.  It is nearly 5 years thereafter, that the

present  Review  Petition  was  filed.  Learned  counsel

highlights the fact of subsequent developments in the

form of selections which have commenced after the date

of the final judgment in the Writ Petition.

7. Thirdly,  learned  counsel  for  the  appellant

would  point  out  that  this  Court  has  spoken  about

circumstances which justify an order for revaluation.

The most important aspect is there is no right to seek

re-evaluation  unless  there  is  a  provision  which

entitles a candidate to seek revaluation. Admittedly,

in this case, there is no provision which entitles the

candidate to seek revaluation. In such circumstances,

the High court was not justified in allowing the Review

Petition and directing re-evaluation of papers. In this

regard, he drew our attention to the judgment of this

court in  Pramod   Kumar Srivastava Vs.  Chairman, Bihar

7

Public  Service  Commission,  Patna  &  Ors.  reported  in

2004 (6) SCC 714.

8. Per contra, the first respondent would point

out that this is a case where the examiner has not

given marks to him for the correct answers which he has

given and the High Court having found the injustice

which has been done to him had to intervene.  Learned

counsel for respondent No.1 drew our attention to the

judgment of this Court in  Ran Vijay Singh & Ors. Vs.

State of Uttar Pradesh & Ors. reported in 2018 (2) SCC

357. The said judgment, no doubt, was rendered by two

learned Judges.  It has been laid down  inter alia as

follows:-

“30.2 If a statute, Rule or Regulation governing an examination does not permit re-evaluation or scrutiny of an answer sheet (as distinct from prohibiting it) then the court may permit re-evaluation or scrutiny only if it is demonstrated very  clearly,  without  any  “inferential process of reasoning or by a process of rationalization”  and  only  in  rare  or exceptional cases that a material error has been committed.”

8

9. In fact, we also permitted the respondent No.1

who was personally present to make submissions at his

request. He would also emphasize upon the facts and how

he has been at receiving end of grave injustice, as a

result of the clear mistake committed in not awarding

marks where he was entitled to.  

10. The first question we must decide is whether we

should allow the appeal on the ground that this is a

case  where  the  Review  Petition  was  filed  after  the

dismissal of the Special Leave Petition. No doubt, in

K. Rajamouli Vs.  A.V.K.N. Swamy reported in 2001 (5)

SCC 37, relied upon by the petitioner, it was held that

inter alia as follows:-

“4. Following the decision in the case of Kunhayammed & Ors. (supra) we are of the  view  that  the  dismissal  of  the special leave petition against the main judgment  of  the  High  Court  would  not constitute res judicata when a special leave  petition  is  filed  against  the order  passed  in  the  review  petition provided the review petition was filed prior  to  filing  of  special  leave petition  against  the  main  judgment  of the High Court. The position would be different where after dismissal of the

9

special leave petition against the main judgment a party files a review petition after a long delay on the ground that the party was prosecuting remedy by way of  special  leave  petition.  In  such  a situation the filing of review would be an  abuse  of  the  process  of  the law.”……………  

11.   However, we notice that a different note was

struck  by  another  Bench,  in  the  decision  Gangadhara

Palo Vs. Revenue Divisional Officer & Anr. reported in

2011 (4) SCC 602.  In the said judgment, a Bench of two

learned Judges has held inter alia  as follows:-

“10.  We  have  carefully  perused  SCC para 4 of the aforesaid judgment. What has been observed therein is that if the review  petition  is  filed  in  the  High Court after the dismissal of the special leave petition, “it would be treated as an affront to the order of the Supreme Court”.  In  our  opinion,  the  above observations  cannot  be  treated  as  a precedent at all. We are not afraid of affronts. What has to be seen is whether a legal principle is laid down or not. It is totally irrelevant whether we have been affronted or not.”

10

12. Noticing  cleavage  of  judicial  opinion,  the

matter  has  been  referred  to  a  larger  Bench.  In  the

light of these developments we do not think that the

appellant is entitled to relief on the basis that the

Review Petition was filed after the dismissal of the

Special Leave Petition.   

13. The next question to be considered is regarding

the merits of the order. In  Pramod   Kumar Srivastava

case (Supra), a Bench of three learned Judges after, in

fact,  adverting  to  the  judgment  of  a  Bench  of  two

learned Judges in 1984 (4) SCC 27 proceeded to lay down

as follows:-

………..“7. There is no dispute that under the  relevant  rule  of  the  Commission there  is  no  provision  entitling  a candidate to have his answer-books re- evaluated.  In  such  a  situation,  the prayer made by the appellant in the writ petition  was  wholly  untenable  and  the learned Single Judge had clearly erred in  having  the  answer-book  of  the appellant re-evaluated.

8. Adopting such a course as was done by the learned Single Judge will give rise  to  practical  problems.  Many candidates may like to take a chance and

11

pray for re-evaluation of their answer- books.  Naturally,  the  Court  will  pass orders on different dates as and when writ petitions are filed. The Commission will  have  to  then  send  the  copies  of individual  candidates  to  examiners  for re-evaluation  which  is  bound  to  take time. The examination conducted by the Commission  being  a  competitive examination,  the  declaration  of  final result will thus be unduly delayed and the vacancies will remain unfilled for a long  time.  What  will  happen  if  a candidate  secures  lesser  marks  in  re- evaluation? He may come forward with a plea  that  the  marks  as  originally awarded  to  him  may  be  taken  into consideration.  The  absence  of  clear rules  on  the  subject  may  throw  many problems  and  in  the  larger  interest, they must be avoided.”

14. In Himachal Pradesh Public Service Commission  

Vs. Mukesh Thakur & Anr. 2010 (6) SCC 759, a Bench of  

two learned Judges held as follows:-

“20. In view of the above, it was not permissible  for  the  High  Court  to examine the question papers 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

12

examination  and  not  for  Respondent  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.”

(Emphasis supplied)

It  was  further  held  more  importantly  as follows:

“24.  The  issue  of  revaluation  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 V.  Paritosh Bhupeshkumar Sheth; (1984) 4 SCC 27, wherein this Court rejected the contention that in the absence of the  provision  for  revaluation,  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/  revaluation  cannot  be challenged unless there are grounds to show  that  the  policy  itself  is  in violation of some statutory provision.”

15. After referring to the Pramod Kumar Srivastava

decision (supra), it was laid down as follows:-

13

“26.  Thus,  the  law  on  the  subject emerges  to  the  effect  that  in  the absence  of  any  provision  under  the statute or statutory rules/ regulations, the  Court  should  not  generally  direct revaluation.”

16. In  Central  Board  of  Secondary  Education

Through  Secretary,  All  India  Pre-Medical/Pre-Dental

Entrance Examination & Ors. Vs. Khushboo Shrivastava &

Ors. reported in  2014 (14) SCC 523, again a bench of

two  learned  Judges  after  undertaking  a  Review  of

earlier decisions, held as follows:-

“9. We find that a three-Judge Bench of this Court in Pramod Kumar Srivastava v.  Bihar  Public  Service  Commission; (2004)  6  SCC  714,  has  clearly  held relying  on  Maharashtra  State  Board  of Secondary and Higher Secondary Education v. Paritosh Bhupeshkumar Sheth; (1984) 4 SCC  27,  that  in  the  absence  of  any provision  for  the  re-evaluation  of answer books in the relevant rules, no candidate  in  an  examination  has  any right to claim or ask for re-evaluation of  his  marks.  The  decision  in  Pramod Kumar Srivastava v. Bihar Public Service Commission; (2004)  6  SCC  714,  was followed by another three-Judge Bench of this  Court  in  Board  of  Secondary Education  v.  Pravas  Ranjan  Panda; (2004)   13   SCC   383,  in  which  the direction  of  the  High  Court  for  re-

14

evaluation of answer books of all the examinees  securing  90%  or  above  marks was  held  to  be  unsustainable  in  law because the regulations of the Board of Secondary  Education,  Orissa,  which conducted the examination, did not make any  provision  for  re-evaluation  of answer books in the rules.”

17. It is, finally, in Ran Vijay Singh & Ors. Vs.

State of Uttar Pradesh & Ors. reported in 2018 (2) SCC

357,  that  the  Court  proceeded  to  cull  out  the

conclusions which include para 30.2. We may also notice

conclusion in para 30.5 which reads as follows:-

“30.5  In the event of a doubt, the benefit  should  go  to  the  examination authority rather than to the candidate.”

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

15

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

16

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

17

undoubted constitutional powers?  We reiterate that the

situation can only be rare and exceptional.

21. We would understand therefore the conclusion in

paragraph  30.2  which  we  have  extracted  from  the

judgment in Ran Vijay Singh & Ors. Vs. State of Uttar

Pradesh & Ors.  2018 (2) SCC 357 only in the aforesaid

light.  We have already noticed that in V.S.Achuthan vs

Mukesh Thakur’s case reported in 2010 (6) SCC 759, a

two Judge Bench in paragraph 26 after survey of the

entire case law has also understood the law to be that

in the absence of any provision the Court should not

generally direct revaluation.

22. In this case we have already noted that the

writ  petition  was  filed  challenging  the  results  and

seeking  revaluation.   The  writ  petition  came  to  be

dismissed in the year 2012 by the High Court.  The

Special Leave Petition was dismissed in the year 2013.

The review petition is filed after nearly 5 years.  In

the interregnum, there were supervening development in

18

the form of fresh selection.  While it may be true that

the delay in filing the review petition may have been

condoned,  it  does  not  mean  that  the  Court  where  it

exercises its discretionary jurisdiction under Article

226  is  to  become  oblivious  to  the  subsequent

development and the impact of passage of time.  Even in

the judgment of this Court in  U.P.P.S.C. through its

Chairman & Anr. Vs. Rahul Singh & Anr.   reported in

2018  (2)  SCC  357  which  according  to  the  first

respondent  forms  the  basis  of  the  High  Court’s

interference though does not expressly stated so, what

the Court has laid down is that the Court may permit

revaluation inter alia only if it is demonstrated very

clearly without any inferential process of reasoning or

by a process of rationalization and only in rare or

exceptional cases on the commission of material error.

It may not be correct to characterize the case as a

rare  or  exceptional  case  when  the  first  respondent

approaches the Court with a delay of nearly 5 years

allowing  subsequent  events  to  overtake  him  and  the

Court.   We  feel  that  this  aspect  was  not  fully

19

appreciated by the High Court.  The review, it must be

noted is not a re-hearing of the main matter.  A review

would lie only on detection without much debate of an

error apparent.  Was this such a case?  It is here that

we must notice the argument of the appellant relating

to  question  in  Part  III  of  the  examination  alone,

engaging the attention of the Court for the reason that

the first respondent pressed this aspect alone before

the High court.  The judgment of the High Court in the

writ petition appears to bear out this submission of

the appellant.  The issue relating to the anomaly in

the  evaluation  of  the  Paper  III  has  been  discussed

thread bare in the judgment.  The view of the High

Court has not been disturbed by this Court.  Despite

this  the  High  Court  in  the  impugned  judgment  has

proceeded to take up the plea relating to questions in

Part-I and Part-II and proceeded to consider the review

petition and granted relief that too after the passage

of nearly 5 years.  This suffices to allow the present

appeal.

20

Despite  all  this  we  would  also  make  a  few

observations on the merits of the matter.

23. The  first  respondent  has  fallen  short  of  5

marks.  In the impugned judgment in paragraph 25, the

Division Bench picks up four questions.  The Court has

premised its interference on the basis of the aforesaid

answers  given  to  the  4  questions  by  the  first

respondent.  If we take Question 3(xiii), the question

was as follows:

“Question no.-3(xiii) of paper-II

Adjournment  under  order  xvii  Rule  1 C.P.C.  cannot  be  granted  under  any circumstances for more than 3 times to a party  during  trial  of  the  suit  (Mark -1)”.

24. The first respondent’s answer is that it is

incorrect but he has been given no marks as apparently

cross  sign  is  given  as  he  has  given  wrong  answer.

Order XVII          Rule 1 reads as follows:

“1. Court may grant time and adjourn hearing  –  (1)  The  Court  may,  if

21

sufficient cause is shown, at any stage of the suit, grant time to the parties or to any of them, and may from time to time adjourn the hearing of the suit for reasons to be recorded in writing:

Provided  that  no  such  adjournment shall be granted more than three times to a party during hearing of the suits.”

25. The case of the first respondent is based on

the  judgment  of  this  Court  in Salem  Advocates  Bar

Association Case  2005 (6) SCC 344.  According to him

even  though  under  Order  XVII  Rule  1  under  no

circumstances  can  adjournment  be  granted  to  a  party

during trial for more than three times, this Court in

the aforesaid judgment has taken the view that beyond 3

times adjournment can be granted.  It is clear that

going  by  the  provisions  of  Order  XVII  Rule  1,  the

answer given by the first respondent is wrong.  It is

on the basis of interpretation placed by the Court that

adjournment  can  be  in  excess  of  3  times.   If  the

examining body has proceeded to evaluate the answers on

the basis of actual provision of Order XVII Rule 1, it

is not a matter where particularly there is no right to

22

revaluation, we are persuaded to interfere.  We would

defer to the view which the examining body would have

taken.   

26. The  next  question  is  Question  No.2  (xviii)

which reads as follows:

“  Q.No. – 2(xviii) in paper no. – (II) The  Plaintiff  can  file  an  application under  section  5  of  Limitation  Act seeking  extension  of  the  period  of limitation prescribed (Mark – 1)”.

The choices given are as follows:

(a) for filing a suit, (b) for filing an appeal, (c) for  filing  an  application under Order XXI CPC (d) for all the above.

27. The complaint of the first respondent is that

he ticked Answer No.B but he is given cross sign which

means his answer is wrong whereas he would contend that

all the other answers namely A,C and D were incorrect

and it is only B which could possibly be correct.

23

28. We  will  proceed  on  the  basis  that  there  is

merit in the contention of first respondent.  The next

question  is  Question  No.3  (xv)  in  Paper  No.2.   The

question was “Appellate Court cannot allow a party to

produce additional evidence.”  But for the answer given

`incorrect’.  Respondent was given the cross sign and

no marks given.  Here also we proceed on the basis that

first  respondent  may  have  legitimate  grievance.

Finally, there is Question No.1 (xiv) in Paper No.2

which reads as follows:

“Q.No.  –  1(xiv)  in  paper  no.  –  (II) Plaintiff  sues  the  defendants  for recovery of Rs. 1,00,000/- in order to prove the case, the plaintiff proved the entries in his books of account showing the defendant to be indebted to him to the said amount (Mark – 3)”.

29. The answer of the petitioner appears to be as

follows:

“In civil case, the case is proved by

preponderance of probabilities.

But in the above case, neither written

of nor money receipt was proved.

24

So, entries in the Books of account is

not sufficient.”

30. It is to be noted that it is not an objective

type question, the maximum marks are 3.  This is not a

case even if we proceed on the basis that the answer is

correct, marks is to be awarded as such.  We noticed

that for 5 questions, the respondent No. 1 has been

given 1 mark, even though, the maximum is 3 marks. It

would appear that awarding full marks is based, not

merely, on the correctness of the answer.

31. However, we would like to rest our conclusion

on the basis that not being armed with a right given by

a  provision  providing  revaluation  and  in  the  facts

which we have already set out and the reasons we have

alluded we would think that the High Court ought not to

have allowed the review petition.  We may incidentally

also notice that the High Court has, on the one hand

reasoned that what was covered by the judgment in the

writ petition was a complaint related to Paper III.

25

Despite this, the direction is given for evaluation of

Paper II and Paper III.  It may be true that direction

to evaluate Paper III may be a mistake but even if this

is  treated  as  Paper  No.I  &  II,  the  High  Court  has

premised its interference on the premise of answer to

Paper No.II. In such circumstances, we allow the appeal

and  set  aside  the  impugned  judgment.   The  review

petition  filed  before  the  High  Court  shall  stand

dismissed.  There shall but no order as to costs.

…………………………….J.                                              (Ashok Bhushan)

…………………………J.                                                 (K.M. Joseph)

New Delhi; February 6, 2019