HIGH COURT OF TRIPURA THROUGH THE REGISTRAR GENERALversusTIRTHA SARATHI MUKHERJEE & ORS.

692                SUPREME [2019]
                           COURT2 REPORTS
                                  S.C.R. 692               [2019] 2 S.C.R.


A                  HIGH COURT OF TRIPURA THROUGH
                         THE REGISTRAR GENERAL
                                        v.
                  TIRTHA SARATHI MUKHERJEE & ORS.
                         (Civil Appeal No. 1264 of 2019)
B                            FEBRUARY 06, 2019
              [ASHOK BHUSHAN AND K. M. JOSEPH, JJ.]
            Judicial Services – Tripura Judicial Service – Revaluation of
      answer papers – Writ petition filed by the first respondent
      challenging the results and seeking revaluation was dismissed by
C     High Court – SLP dismissed by Supreme Court – 5 years thereafter,
      review petition filed against dismissal of writ petition, which was
      allowed by High Court – In instant case, appellant contended that
      there was no right to seek re-evaluation unless there is a provision
      which entitles a candidate to seek revaluation and there was an
D     inordinate delay with which Review Petition was filed – Held: In
      absence of any provision, the Court should not generally direct
      revaluation – 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 – In instant
E     case, the review petition was filed in High Court after 5 years of
      dismissal of the SLP – Also, there were supervening development in
      the form of fresh selection in between – 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
F     allowing subsequent events to overtake him and the Court – High
      Court ought not to have allowed the review petition – Delay/Laches
      – Constitution of India – Art.226.
            Allowing the appeal, the Court
            Held: 1. There is no legal right to claim or ask for
G     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 to answer is whether despite the absence of


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                                       692
HIGH COURT OF TRIPURA THR. THE REGISTRAR GENERAL                            693
       v. TIRTHA SARATHI MUKHERJEE & ORS.

any provision, are the courts completely denuded of power in the            A
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
                                                                            B
could not maintain either writ petition or the review petition
demanding holding of revaluation. [Para 18][701-H; 702-A-B]
       2. 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                  C
circumstances. The case may arise where even though there is
no provision for revaluation it turns out that despite giving the
correct answer no marks are awarded. No doubt this must be
confined to a case where there is no dispute about the correctness
of the answer. Further, if there is any doubt, the doubt should be          D
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                E
consequently the candidate is found disentitled to any marks.
[Para 19][702-C-E]
       3. In the absence of any provision the Court should not
generally direct revaluation. In instant case, the writ petition was
filed challenging the results and seeking revaluation. The writ             F
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 the form of fresh
selection. While it may be true that the delay in filing the review
                                                                            G
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. [Paras 21 and 22][702-H; 703-A-B]

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694               SUPREME COURT REPORTS                   [2019] 2 S.C.R.


A            4. 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
B
      of nearly 5 years allowing subsequent events to overtake him
      and the Court. This aspect was not fully 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. It is here that this Court must notice
C     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
D
      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
E     relief that too after the passage of nearly 5 years. This suffices to
      allow the present appeal. This Court would like to rest its
      conclusion on the basis that not being armed with a right
      given by a provision providing revaluation and in the facts
      which have been already set out and the reasons alluded, the
      High Court ought not to have allowed the review petition.
F
      [Paras 22 and 31][703-D-G; 705-G-H]
             Himachal Pradesh Public Service Commission v.
             Mukesh Thakur & Anr. (2010) 6 SCC 759 : [2010]
             7 SCR 189; Pramod Kumar Srivastava v. Chairman,
             Bihar Public Service Commission, Patna & Ors. (2004)
G            6 SCC 714 : [2004] 3 Suppl. SCR 372; Central Board
             of Secondary Education Through Secretary, All India
             Pre-Medical/Pre-Dental Entrance Examination & Ors.
             v. Khushboo Shrivastava & Ors. (2014) 14 SCC 523 :
             [2011] 10 SCR 286 – relied on.
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HIGH COURT OF TRIPURA THR. THE REGISTRAR GENERAL                         695
       v. TIRTHA SARATHI MUKHERJEE & ORS.

      K. Rajamouli v. A.V.K.N. Swamy (2001) 5 SCC 37                     A
      : [2001] 3 SCR 473; Ran Vijay Singh & Ors. v. State
      of Uttar Pradesh & Ors. (2018) 2 SCC 357 : [2017]
      12 SCR 95 ; Gangadhara Palo v. Revenue Divisional
      Officer & Anr. (2011) 4 SCC 602 : [2011] 3 SCR 746 ;
      V.S. Achuthan v. Mukesh Thakur (2010) 6 SCC 759 ;                  B
      U.P.P.S.C. through its Chairman & Anr. v. Rahul Singh
      & Anr. [2018] SCR 28; Salem Advocates Bar
      Association Case (2005) 6 SCC 344 : [2005] 1 Suppl.
       SCR 929 – referred to.
                       Case Law Reference                                C
[2001] 3 SCR 473                referred to                Para 5
[2004] 3 Suppl. SCR 372         relied on                  Para 6
[2017] 12 SCR 95                referred to                Para 8
                                                                         D
[2011] 3 SCR 746                referred to                Para 11
[2010] 7 SCR 189                relied on                  Para 14
[2011] 10 SCR 286               relied on                  Para 16
[2017] 12 SCR 95                referred to                Para 18
                                                                         E
[2018] SCR 28                   referred to                Para 22
[2005] 1 Suppl. SCR 929         referred to                Para 25
      CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1264
of 2019
                                                                         F
      From the Judgment and Order dated 19.03.2018 of the High Court
of Gauhati at Guwahati in Review Petition No. 21 of 2018.
      Naresh K. Sharma , Adv. for the Appellant.
      Mrs. Urmila Sirur, Kabir Shankar Bose, Suvodeep Roy, P. I. Jose,
Ms. P.S. Chandralekha, Dinesh K. Garg, Abhishek Garg, Dhananjay          G
Garg, Deepak Mishra, Advs. for the Respondents.
      Tirtha Sarathi Mukherjee, in-person.


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696                 SUPREME COURT REPORTS                        [2019] 2 S.C.R.


A            The Judgment of the Court was delivered by
             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
B     respondent No.1 against the dismissal of his Writ Petition, has been
      allowed and the Court has directed 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
C     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
D     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
E     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
F     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
G
      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 exercise of re-evaluation like a
      super examiner. Thereafter, the following finding is rendered:-

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HIGH COURT OF TRIPURA THR. THE REGISTRAR GENERAL                              697
v. TIRTHA SARATHI MUKHERJEE & ORS. [K. M. JOSEPH, J.]

       “25. We have gone through the answer scripts of the petitioner         A
       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
                                                                              B
       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      C
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 this purpose, the
answer papers in the custody of Gauhati High Court was to be transmitted      D
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)         E
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.                        F
       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                  G
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
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698                 SUPREME COURT REPORTS                       [2019] 2 S.C.R.


A     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 Public Service Commission, Patna & Ors. reported in 2004 (6)
B
      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
C     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
D            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.”
E
             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.
F            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:-
G            “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
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HIGH COURT OF TRIPURA THR. THE REGISTRAR GENERAL                                699
v. TIRTHA SARATHI MUKHERJEE & ORS. [K. M. JOSEPH, J.]

       was filed prior to filing of special leave petition against the main     A
       judgment of the High Court. The position would be different where
       after dismissal of the 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
                                                                                B
       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             C
       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.         D
       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.”
       12. Noticing cleavage of judicial opinion, the matter has been
referred to a larger Bench. In the light of these developments we do not        E
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:-        F
       ………..”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             G
       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 pray for re-evaluation of their answer-
       books. Naturally, the Court will pass orders on different dates as       H
700                SUPREME COURT REPORTS                      [2019] 2 S.C.R.


A           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
B
            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.”
C           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,
D           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
            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
E           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)
F           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
G           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
H
            statutory provision.”
HIGH COURT OF TRIPURA THR. THE REGISTRAR GENERAL                              701
v. TIRTHA SARATHI MUKHERJEE & ORS. [K. M. JOSEPH, J.]

       15. After referring to the Pramod Kumar Srivastava decision            A
(supra), it was laid down as follows:-
       “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                    B
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           C
       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    D
       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        E
       re-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       F
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.”                   G
       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       H
702                 SUPREME COURT REPORTS                      [2019] 2 S.C.R.


A     we would have to answer is whether despite the absence of any provision,
      are the courts completely denuded of power in the exercise of the
      jurisdiction under Article 226 of the Constitution to direct revaluation? It
      is true that the right to seek a writ of mandamus is based on the existence
      of a legal right and the corresponding duty with the answering respondent
      to carry out the public duty. Thus, as of right, it is clear that the first
B
      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
C     occasioned to a writ applicant in certain circumstances. The case may
      arise where even though there is no provision for revaluation it turns out
      that despite giving the correct answer no marks are awarded. No doubt
      this must be confined to a case where there is no dispute about the
      correctness of the answer. Further, if there is any doubt, the doubt
D     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
E     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
F     claim the right of evaluation as a matter of right and another to say that
      in no circumstances whatsoever where there is no provision for
      revaluation will the writ court exercise its undoubted constitutional
      powers? We reiterate that the situation can only be rare and exceptional.
              21. We would understand therefore the conclusion in paragraph
      30.2 which we have extracted from the judgment in Ran Vijay Singh &
G
      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
H     should not generally direct revaluation.
HIGH COURT OF TRIPURA THR. THE REGISTRAR GENERAL                                703
v. TIRTHA SARATHI MUKHERJEE & ORS. [K. M. JOSEPH, J.]

       22. In this case we have already noted that the writ petition was        A
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 the form of fresh selection. While it may be true that the
                                                                                B
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            C
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
                                                                                D
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 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              E
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
                                                                                F
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       G
years. This suffices to allow the present appeal.
       Despite all this we would also make a few observations on the
merits of the matter.

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704                 SUPREME COURT REPORTS                       [2019] 2 S.C.R.


A            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:
B            “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
C     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 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:
D
             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
E     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
F     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 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
G
      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)”.

H
HIGH COURT OF TRIPURA THR. THE REGISTRAR GENERAL                                705
v. TIRTHA SARATHI MUKHERJEE & ORS. [K. M. JOSEPH, J.]

The choices given are as follows:                                               A
       (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       B
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.
       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           C
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        D
       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.    E
       But in the above case, neither written of nor money receipt was
       proved.
       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               F
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           G
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
                                                                                H
706                 SUPREME COURT REPORTS                     [2019] 2 S.C.R.


A     in the writ petition was a complaint related to Paper III. 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
B
      filed before the High Court shall stand dismissed. There shall but no
      order as to costs.

      Ankit Gyan                                                   Appeal allowed.


C




D




E




F




G




H