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Tuesday, May 5, 2015

writ of Mandamus in the form of declaration that the action of respondent Nos.3 and 4 in not absorbing him as a District Judge in pursuance of the notification dated 13.08.2012 is illegal and unconstitutional.

THE HONBLE THE CHIEF JUSTICE SRI KALYAN JYOTI SENGUPTA AND THE HONBLE SRI JUSTICE SANJAY KUMAR              

WRIT PETITION No. 2928 OF 2015  

18-02-2015

Kandelli Bhishma Gangeyudu Petitioner

The State of A.P., rep., by its Chief Secretary, Hyderabad and
others.Respondents

Counsel for petitioner:Sri Vedula Srinivas    

Counsel for respondent No.1:Government Pleader for GAD (AP)
Counsel for respondent No.2  :  Government Pleader for GAD (TG)

                                                       
<GIST:

>HEAD NOTE:  


? Cases referred


This Court made the following:


THE HONBLE THE CHIEF JUSTICE SRI KALYAN JYOTI SENGUPTA            
AND
THE HONBLE SRI JUSTICE SANJAY KUMAR        

WRIT PETITION No. 2928 of 2015  

ORDER: (Per the Honble the Chief Justice Sri Kalyan Jyoti Sengupta)

        This writ petition has been heard for final hearing today.  By this writ
petition the petitioner asked for issuance of writ of Mandamus in the form of
declaration that the action of respondent Nos.3 and 4 in not absorbing him as a
District Judge in pursuance of the notification dated 13.08.2012 is illegal and
unconstitutional.

        The petitioner is a Fast Track Court Judge, and pursuant to the
notification
dated 13.08.2012 he has taken examination for absorption in the regular cadre of
the District Judge.  This participation was made on the strength of the
direction
given by the Honble Supreme Court in the case of Brij Mohan Lal vs. Union of
India and others .  There is no dispute that the petitioner secured 42 marks out
of
150 marks in the written test.  Going by the norms he should not have been
allowed to participate in the oral interview as he could secure less than
qualified
marks.  However, on the strength of the interim order dated 13.12.2012 passed by
this Court in W.P.No.37852 of 2012 filed by the petitioner such an opportunity
was given, and he secured 17 marks out of 100 marks.  The petitioner says to
maintain his challenge that evaluation of the answer scripts in the written test
was
not fair and rational and if reevaluation is done he could secure better marks
to
qualify himself so that he could be absorbed going by the published norms.

        Sri Vedula Srinivas, learned counsel appearing for the petitioner, would
contend that the Court has ample power to direct reevaluation and reassessment
of
the answers given by the petitioner.  He drew our attention to a few questions
and
suggested answers and submits that as the key answer itself is wrong, evaluation
is
automatically wrong.

        In this given situation the Honble Supreme Court has allowed reevaluation
of the answer scripts.  To support his submission he has cited the decisions of
the
Honble Supreme Court in the cases of Sahiti and others vs. Chancellor,
DR.N.T.R. University of Health Sciences and others  and Rajesh Kumar and
others vs. State of Bihar and others .

        After hearing the learned counsel for the petitioner and noticing the
material annexed to the petition, we do not find any legal provision for
reevaluation of answer scripts.  The Court cannot be a substitute of examiner or
of
the expert body.  Interview was taken by the petitioner before the Committee
comprising of the Honble Chief Justice and number of Senior Judges of this
Court. The assessment of highest authority of the State judiciary is of great
value
and nothing has been placed to upset the same.

        Mr. Srinivas says that in this case, as it was done in the case of Rajesh
Kumar and others (3 supra), this Court should direct the respondents to reassess
or reevaluate the papers by appointing an expert. We are unable to accept this
submission, as there is no legal provision for the same.

        We have seen the said judgment of the Honble Supreme Court.  It appears
from paragraphs 19 and 20 thereof that in that case factually it was found that
41
key answers out of 100 were found to be erroneous and on the basis thereof
evaluation was made and in that context the Honble Supreme Court found that if
those 41 questions key answers are taken into consideration then there was fair
chance of the petitioner succeeding in the matter.  In this case factually
except one
question and answer no other questions and answers could be shown to be
erroneous.  Therefore, on the facts and circumstances of the case even if
reevaluation is allowed hardly there would be difference.

        As far as the decision of the Honble Supreme Court in the case of Sahiti
and others (2 supra) is concerned, this judgment really goes against the
petitioners contention and it could be found from para 36 thereof, which reads
as
follows:
        The Supreme Court (in Board of Secondary Education case 1) was of
the opinion that the question whether in the absence of any provision to that
effect an examinee is entitled to ask for re-evaluation of his answer books was
examined by the Supreme Court in Pramod Kumar Srivastava v. Bihar Public
Service Commissioner ((2004) 6 SCC 714).  It was noticed by the Supreme Court
that in the said decision it was held that in the absence of rules providing for
re-
evaluation of answer books no direction should be issued because a direction for
re-evaluation of the answer books would throw many problems and in the larger
public interest such a direction must be avoided.  Therefore, the Supreme Court
expressed the opinion that the order of the High Court directing re-evaluation
of
the answer books of all the examinees securing 90% or above marks was clearly
unsustainable in law and set aside the same.  The above decision deals with the
right of the student or candidate to claim re-examination/re-evaluation of his
answer sheet and the power of the High Court to order revaluation of answer
sheets.  It does not deal with the power of the Board to order re-evaluation of
answer books if the factual scenario so demands.

        Therefore, it is clear that if the authorities concerned are of the
opinion for
reevaluation, it could be done, and it cannot be done by the Court nor the Court
can mandate the authorities to do so.  It is the exclusive domain of the
appointing
authority or selection committee.  There is no legal provision for reevaluation
nor
the authorities concerned are empowered under the rules and law to do so.  On
the
question of reevaluation in that case factually it was found that the
Vice-Chancellor was conferred with the power to take such a decision.
Therefore,
the aforesaid judgment is clearly distinguishable with the facts and
circumstances
of this case.

        In that view of the matter, we do not find any reason to interfere with
this
matter.
        The writ petition is accordingly dismissed.    

        Pending miscellaneous petitions, if any, shall also stand dismissed.  No
order as to costs.

___________________  
K.J. SENGUPTA, CJ  

_______________  
SANJAY KUMAR, J  
Date: 18.02.2015

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