# Abhishek Sharma v. State of U.P. & Ors

- **Citation:** (2020) 6 ILRA 1131
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020
- **Case number:** Misc. Single No. 2810 of 2020
- **Bench:** Rakesh Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/abhishek-sharma-v-state-of-u-p-ors-45756
- **Pages:** 8

## Headnote

C.S.C.

(A) No Right to claim or ask for reevaluation of his marks - absence of any
provision for reevaluation of answerbooks
in
the
relevant
rules
-
no
candidate in an examination has got any
right whatsoever to claim or ask for reevaluation of his marks -In the absence
of any provision in the relevant Rules /
Regulations
providing
for
reexamination or re-evaluation of answerbooks of a candidate in an examination,
the
Court
cannot
direct
such
reexamination or re-evaluation . Para - 7,9

Petitioner
appeared
in
the Intermediate
Examination conducted by the Board of High
School and Intermediate, Uttar Pradesh,
Allahabad - petitioner, alongwith two other
students, filed a writ petition - praying for reevaluation of his answer-books pertaining to
Mathematics and English question papers - In
the absence of any provision for re-evaluation
in the Board Examination, the prayer made by
the petitioner for re-evaluation of his answerbooks was rejected by a learned Single Judge.
Para - 2

HELD:- In the absence of any provision for
re-evaluation or re-assessment , the claim of
the petitioner for re-evaluation of his answersheets cannot be upheld.Para-11

Writ petition dismissed. (E-7)

List of cases cited:-

## Text

6 All. Abhishek Sharma Vs. State of U.P. & Ors. 1131

"Although, we are not inclined
to grant arrears of salary to the petitioner
during the period of unauthorized absence
from duty, but we direct that the
petitioner shall be reinstated in service
w.e.f. 15.05.2013. It is also directed that
the disciplinary authority shall proceed
afresh from the stage of filing of the reply
to charge sheet and pass fresh order after
providing due opportunity of hearing to
the petitioner and in view of the
observations made above, conclude the
fresh enquiry within a period of six
months from the date of production of a
certified copy of the present order and
communicate the same to the petitioner."

4. That in compliance of the
order dated 09.05.2013, two orders dated
28.10.2013 have been passed by the
Deponent. The copy of the orders dated
28.10.2013 are being addressed herewith
as Annexure No. CA-1 & Annexure No.
CA-2.

5. That the delay in the matter is
neither deliberate nor intentional as some
time
was
consumed
in
official
correspondence
in
the
matter
and
obtaining approvals of the competent
authority and as such the same is liable to
be condoned by this Hon'ble Court.

6. That in the above noted
circumstances the order passed by this
Hon'ble Court has been fully complied
with and it is necessary in the interest of
justice that the notice may kindly be
discharged and Contempt petition may be
dismissed."

13. From a perusal of the affidavit
extracted above, it is apparent that there is
no such undertaking as alleged by the
counsel for the applicant and as such
there is no question of any breach of any
undertaking on the part of the respondent.

14. In so far as the second limb of
the submission of the learned counsel for
the applicant, relating to the legal advice
sought for approaching the Apex Court, is
concerned, every litigant, including the
State, has a right to take recourse to the
legal remedy available to them under law.
Merely because the respondent has sought
legal advice from the Chief Standing
Counsel regarding the feasibility of filing
a Special Leave Petition against the order
dated 09.05.2013 passed by this Court, it
cannot be said that there is a deliberate
disobediance of the said order.

15. On merit, this Court is of the
opinion that no case of civil contempt is
made out. Besides, it is also clear that the
prayer is also barred by limitation. A
limitation period of one year is provided
under Section 20 of the Contempt of
Courts Act. The application is hopelessly
barred by limitation and is liable to be
dismissed as such.

16. The contempt petition is devoid
of merit and is accordingly dismissed.
----------

(2020)06ILR A1131
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 03.02.2020

BEFORE

THE HON'BLE RAKESH SRIVASTAVA, J.

Misc. Single No. 2810 of 2020

Abhishek Sharma ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Mohd Ateeq Khan
1132 INDIAN LAW REPORTS ALLAHABAD SERIES
Counsel for the Respondents:
C.S.C.

(A) No Right to claim or ask for reevaluation of his marks - absence of any
provision for reevaluation of answerbooks
in
the
relevant
rules
-
no
candidate in an examination has got any
right whatsoever to claim or ask for reevaluation of his marks -In the absence
of any provision in the relevant Rules /
Regulations
providing
for
reexamination or re-evaluation of answerbooks of a candidate in an examination,
the
Court
cannot
direct
such
reexamination or re-evaluation . Para - 7,9

Petitioner
appeared
in
the Intermediate
Examination conducted by the Board of High
School and Intermediate, Uttar Pradesh,
Allahabad - petitioner, alongwith two other
students, filed a writ petition - praying for reevaluation of his answer-books pertaining to
Mathematics and English question papers - In
the absence of any provision for re-evaluation
in the Board Examination, the prayer made by
the petitioner for re-evaluation of his answerbooks was rejected by a learned Single Judge.
Para - 2

HELD:- In the absence of any provision for
re-evaluation or re-assessment , the claim of
the petitioner for re-evaluation of his answersheets cannot be upheld.Para-11

Writ petition dismissed. (E-7)

List of cases cited:-

1. CBSE Vs Aditya Bandopadhyay & ors. , (2011)
8 SCC 497

2. Maharashtra State Board of Secondary and
Higher
Secondary
Education
Vs
Paritosh
Bhupeshkumar Sheth , (1984) 4 SCC 27

3. Pramod Kumar Srivastava Vs Chairman, BPSC
, (2004) 6 SCC 714

4. Board of Secondary Education Vs Pravas
Ranjan Panda , (2004) 13 SCC 383

5. Board of Secondary Education Vs D. Suvankar
, (2007) 1 SCC 603

6. W.B. Council of Higher Secondary Education
Vs Ayan Das , (2007) 8 SCC 242

7. Himanchal Pradesh Public Service commission
Vs Mukesh Thakur , (2010) 6 SCC 759

8. Tanya Malik Vs Registrar General of the Delhi
High Court , (2018) 14 SCC 129

(Delivered by Hon'ble Rakesh Srivastava, J.)

1. Heard Shri Mohd. Ateeq Khan,
learned counsel for the petitioner and the
learned Standing Counsel appearing on
behalf of the State respondents.

2. The petitioner appeared in the
Intermediate
Examination,
2019
conducted by the Board of High School
and
Intermediate,
Uttar
Pradesh,
Allahabad (for short ''the Board') as a
regular student from S.S. Bhupati Singh
Memorial
Inter
College,
Alambagh,
Lucknow (for short ''the College'). He
passed the said examination in first
division.
However,
the
petitioner,
alongwith two other students, filed a writ
petition bearing Misc. Single No. 14803
of 2019 before this Court praying for reevaluation of his answer-books pertaining
to Mathematics and English question
papers. In the absence of any provision
for
re-evaluation
in
the
Board
Examination, the prayer made by the
petitioner for re-evaluation of his answerbooks was rejected by a learned Single
Judge of this Court by an order dated
24.05.2019. The learned Single Judge,
however, granted liberty to the petitioner
to invoke the provisions of Right to
Information Act for getting copies of the
answer-books in order to enable the
petitioner to know the pattern of marking.
6 All. Abhishek Sharma Vs. State of U.P. & Ors. 1133
The operative portion of the order dated
24.05.2019 is extracted below:

"Learned
counsel
for
the
petitioners also could not bring to the
notice of the Court any statutory or
otherwise provision contained in any
circular/executive order/rules/regulations
or any enactment which permits reevaluation of answer books. In the
aforesaid view of the matter, the prayers
made in this petition as such cannot be
granted.

At this juncture, learned counsel
for the petitioners has prayed that the
petitioners may be permitted to invoke the
provisions of Right to Information Act for
getting true/photostat copies of their
answer books so that they can know the
pattern of marking.

Hon'ble Supreme Court in the
case of CBSE vs. Aditya Bandopadhyay
and others, reported in [(2011) 8 SCC
497] has held that under Right to
Information Act if demanded, the answer
books are to be permitted to be
shown/copies
thereof
given
to
the
candidates by the bodies conducting
public examination.

In
view
of
the
aforesaid
judgment, the petitioners are permitted to
move appropriate application under the
Right to Information Act for being
provided with photostat/true copies of
their answer books and in case any such
application is made, the same shall be
dealt with in accordance with law and the
provisions
contained
in
Right
to
Information
Act
by
the
Public
Information Officer within the time
stipulated for the said purpose under the
Right to Information Act. On receipt of
the photostat/true copies of the answer
books if any grievance to the petitioners
still subsist, it will be open to them to take
recourse to the legal remedy which may
be available to them under law for
redressal of their grievances, if any.

With the aforesaid observations
and directions, the writ petition stands
disposed of."

3. After obtaining copies of his
answer-books
of
Mathematics
and
English papers, the petitioner, alongwith
two other students, filed another writ
petition bearing Misc. Single No. 30776
of 2019, Shivam Tiwari and others v.
State of U.P. and others before this Court.
On an objection being raised by the
learned Standing Counsel with regard to
mis-joinder of cause of action, this Court
permitted the petitioner to withdraw his
name from the said writ petition with
liberty to him to file a fresh petition.

4. In the above background, the
petitioner has approached this Court
again, by means of the present writ
petition, seeking a writ of mandamus
directing the respondents to re-evaluate
his Mathematics and English answerbooks, wherein the petitioner has secured
53 and 56 marks respectively. It is
averred that the petitioner had secured
highest marks in other subjects and had
also
answered
the
questions
in
Mathematics and English papers correctly
and was expecting more than 80 marks in
the said subjects. It is alleged that the
answers given by the petitioner to some
questions, mentioned in paragraph 14 and
15 of the writ petition, in the Mathematics
and English paper were correct answers
but have been marked as incorrect,
whereas in some questions less marks
have been given by the examiner. It is
averred that "it is common knowledge
and sometimes also reported in the
newspapers
that
unqualified
persons
1134 INDIAN LAW REPORTS ALLAHABAD SERIES
check the copies of High School and
Intermediate Examinations. Sometimes,
copies are taken by the examiners at their
homes and they are checked by family
members and that all the examiners who
check the copies are not expert of the
concerned subject. These copies are
checked in cursory manner without giving
them sufficient time." In paragraph 9 of
the writ petition it has been averred that
mischief has been done at the place where
the answer books were sent for evaluation
and in paragraph 17 of the writ petition it
has been averred that about 70 students
appeared
from
the
College
in
Intermediate Examination conducted by
the Board and all aforesaid students have
been
awarded
less
marks
in
the
Mathematics paper. The petitioner, it is
alleged, tallied his answer copies and also
showed them to his Mathematics and
English teachers and he was told by them
that the examiners have not given him
marks for the correct answers and in some
of the questions less marks have been
awarded by the examiners. It is on the
basis
of
these
vague
and
general
averments, the petitioner prays for reevaluation of his answer-books.

5. The learned counsel for the
petitioner, relying upon an order dated
11.11.2019 passed by a learned Single
Judge of this Court in writ petition
bearing Misc. Single No. 30776 of 2019
prays that a direction be issued for reevaluation
of
answer-books
of
Mathematics and English papers of the
petitioner by an Associate Professor of
Lucknow University of the subject
concerned.

6. Per contra, the learned Standing
Counsel has submitted that in the absence
of any provision for re-evaluation in the
Regulations of the Board, the Court
cannot direct such re-examination or reevaluation.

7. By a series of decisions of the
Apex Court, it is now a well settled
proposition of law that in the absence of
any provision in the relevant Rules /
Regulations providing for re-examination
or re-evaluation of answer-books of a
candidate in an examination, the Court
cannot direct such re-examination or reevaluation.

8. In Maharashtra State Board of
Secondary
and
Higher
Secondary
Education v. Paritosh Bhupeshkumar
Sheth, (1984) 4 SCC 27, the Apex Court
held that in the absence of a specific
provision conferring a right upon an
examinee to have his/her answer-sheets
re-evaluated, no such direction can be
issued. The principles set out in the said
case have been consistently followed by
the Apex Court in a series of judgments.

9. In Pramod Kumar Srivastava v.
Chairman,
Bihar
Public
Service
Commission, (2004) 6 SCC 714, a three
Judge bench of the Apex Court observed
as under:-

"7. ...... 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 totaling 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
6 All. Abhishek Sharma Vs. State of U.P. & Ors. 1135
mistake was found in the marks awarded
to the appellant in the General Science
paper. In the absence of any provision for
reevaluation 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 supplied)

10. The same view has been
expressed by the Apex Court in Board of
Secondary Education v. Pravas Ranjan
Panda, (2004) 13 SCC 383, Board of
Secondary Education v. D. Suvankar,
(2007) 1 SCC 603, W.B. Council of
Higher Secondary Education v. Ayan
Das, (2007) 8 SCC 242, Himanchal
Pradesh Public Service commission v.
Mukesh Thakur, (2010) 6 SCC 759 and
Tanya Malik v. Registrar General of the
Delhi High Court, (2018) 14 SCC 129.

11. In the present case, admittedly,
there is no provision for re-evaluation
with respect to examination conducted by
the Board. In view of the settled legal
position discussed above, in the absence
of any provision for re-evaluation or reassessment, the claim of the petitioner for
re-evaluation of his answer-sheets cannot
be upheld

12. As stated above, the learned
counsel for the petitioner has placed
heavy reliance upon an order dated
11.11.2019 passed by a learned Single
Judge of this Court in Misc. Single No.
30776
0f
2019.
The
order
dated
11.11.2019 is extracted below in extenso:

"1. Heard learned counsel for
the petitioners and learned Standing
Counsel for the State respondents Sri
Upendra Singh.

2. Learned Standing Counsel
has raised a preliminary objection as to
the maintainability of the writ petition
jointly by the petitioners, saying that
petitioner no.3 wants his answer copy of
English examination to be reevaluated,
whereas petitioner nos.1, 2 and 4 want
reevaluation of their answer copies of
Mathematics examination. There is misjoinder of cause of action.

3. Learned counsel for the
petitioners has submitted that petitioner
no.3 wants his Mathematics answer copy
as well as English answer copy to be
reevaluated and, therefore, it cannot be
said that there is total mis-joinder of
cause of action.

4. This Court grants liberty to
petitioner no.3 to file fresh petition, both
for his Mathematics and English answer
copies and his name be deleted from the
array of the petitioners.

5. It has been submitted by the
learned counsel for the petitioners that the
petitioners had earlier approached this
Court by filing Writ Petition No.14803
(MS) of 2019 and this Court had disposed
of the writ petition on 24.5.2019, granting
liberty to the petitioners to file an
application under Right to Information
Act to procure the photocopies of their
answer
books
with
respect
to
Mathematics and English papers as
written by them in their Intermediate
Examination of the year 2019.

6. The petitioners thereafter
applied under the Right to Information
Act for getting two photocopies of their
answer books. From the photocopies that
were supplied by the respondent nos.2
and 3, the petitioners have come to know
that
the
answer
books
of
their
Mathematics paper have not been marked
correctly. In Paras 13, 14 and 15 of the
1136 INDIAN LAW REPORTS ALLAHABAD SERIES
writ
petition,
the
petitioners
have
mentioned the followings facts.

"13. That the petitioner no.1
allotted the number as 0902018. The
correct answers of question number 1(b),
1(c), 2(a), 2(b), 2(c), 2(d) and 2(e) but the
examiner has held the said answer wrong
although they are correct answers. The
examiners have given less mark to
question number 3 a, b, c, d and question
number 4-a, b, c, d.

14. That the petitioner no.2
allotted the number as 0901994 and
petitioner no.3 0901989. The correct
answers of question number 5 (b) e, 6-b,
c, d, f but the examiner has held the said
answer wrong although they are correct
answers. The examiner has given less
mark to question number 5a, and question
number 9-d.

15. That the petitioner no.4
allotted the number as 0902014. The
correct answers of question number 1(b),
1(c), 2(a), 2(e), 3-a, b, d and 4 c, d are
correct but the examiner has held the said
answer wrong although they are correct
answers. The examiner has given less
mark to question number 5-a, d, e, f and
question number 6-a, b, c, d, e question
no.8-b question no.9-a and question no.2b."

7. Since the petitioners have
filed photocopies of the answer sheet for
Mathematics paper as Annexure to the
writ petition, it would be in the interest of
justice that this Court entertains the writ
petition, although as submitted by the
learned counsel for the State respondents,
there is no provision for reevaluation.

8. Since the petitioners have
raised doubts with regard to correct
answers in regard to Mathematics for
which, this Court does not consider itself
to be an expert, copies of the answer
books of the petitioners in Mathematics
paper shall be given to a Professor or an
Associate Professor in Mathematics in
Lucknow University for evaluation of the
petitioners' contention as raised by them
in Paras 13, 14 and 15 of the writ petition.

9. The respondent no.3 shall
provide true photocopies of the answer
sheet of the petitioners in Mathematics
paper for Intermediate Examination of the
year 2019 in sealed cover to the learned
counsel for the State respondents Sri
Upendra Singh, who shall request the
learned
counsel
for
the
Lucknow
University Sri Savitra Vardhan Singh to
ask the Associate Professor of the
Mathematics Department to look over the
doubts raised by the petitioners herein and
submit a report to this Court within a
period of four weeks. The report shall be
submitted to this Court in a sealed cover
through the Registrar of the Lucknow
University.

10. Let the answer copies of
Mathematics paper of petitioner nos.1, 2
and 4 be provided to the learned counsel
for the State respondents Sri Upendra
Singh within ten days from the date of
receipt of a certified copy of this order
through the petitioners, which shall be
forwarded by him to the learned counsel
for the Lucknow University Sri Savitra
Vardhan Singh within a further period of
three days.

11. List this matter on 9.12.2019"

13. The order dated 11.11.2019 is
only an interlocutory order. Before
passing the said order the learned Judge
has not considered and discussed the law
on the subject. It is trite that a decision is
binding not because of its conclusions but
in regard to its ratio and the principles,
laid down therein. Any declaration or
conclusion arrived at without application
of mind or not preceded by any reason
6 All. Abhishek Sharma Vs. State of U.P. & Ors. 1137
cannot be deemed to be declaration of law
or authority of a general nature binding as
a precedent. The petitioner, thus, derives
no benefit from the order aforesaid.

14. That apart, in almost identical
circumstances, in the case of Pramod
Kumar Srivastava (supra), while setting
aside the judgment and order passed by
the Patna High Court, the Apex Court
deprecated the manner in which the High
Court had directed the answer-book of
General Science paper of the petitioner, in
that case, to be re-evaluated by expert
teachers through the Principal of a
Science College. Paragraph 8, 9 and 10 of
the said report are being extracted below:

"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 answerbooks. 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 reevaluation 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.

9. Even otherwise, the manner
in which the learned Single Judge had the
answer-book of the appellant in General
Science paper re-evaluated cannot be
justified. The answer-book was not sent
directly by the Court either to the
Registrar of Patna University or to the
Principal
of
Science
College.
A
photocopy of the answer-book was
handed over to the Standing Counsel for
Patna University who returned the same
to the Court after some time and a
statement was made to the effect that the
same had been examined by two teachers
of Patna Science College. The names of
the teachers were not even disclosed to
the Court. The examination in question is
a competitive examination where the
comparative merit of a candidate has to
be judged. It is, therefore, absolutely
necessary that a uniform standard is
applied in examining the answer-books of
all the candidates. It is the specific case of
the Commission that in order to achieve
such an objective, a centralised system of
evaluation of answer-books is adopted
wherein different examiners examine the
answer-books on the basis of model
answers prepared by the Head Examiner
with the assistance of other examiners. It
was pleaded in the letters patent appeal
preferred by the Commission and which
fact has not been disputed that the model
answer was not supplied to the two
teachers of Patna Science College. There
can be a variation of standard in
awarding marks by different examiners.
The manner in which the answer-books
were got evaluated, the marks awarded
therein cannot be treated as sacrosanct
and consequently, the direction issued by
the
learned
Single
Judge
to
the
Commission to treat the marks of the
appellant in General Science paper as 63
cannot be justified."(emphasis supplied)

15. In view of the above discussion,
no ground for interference is made out.
1138 INDIAN LAW REPORTS ALLAHABAD SERIES
The writ petition, being devoid of merit,
is hereby dismissed.
----------

(2020)06ILR A1138
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 26.05.2020

BEFORE

THE HON'BLE PANKAJ KUMAR JAISWAL,
J.
THE HON'BLE SAURABH LAVANIA, J.

Misc. Bench No. 8109 of 2020

Gold Star Green Seeds Pvt. Ltd & Anr.
 ...Petitioners
Versus
U.O.I. & Ors. ...Respondents

Counsel for the Petitioners:
Amol Kumar, Shivanshu Mishr

Counsel for the Respondents:
A.S.G., Vijayant

(A) Constitution of India - Article 226 -
maintainability
of
the
writ
petition
within the territorial jurisdiction - 'right
to action' and 'cause of action' are two
different things - A person residing any
where in the country being aggrieved by
an order of Government Central or State
or authority or person may have a right
to action at law but it can be forced or
the jurisdiction under Article 226 can be
invoked of that High Court only within
whose territorial limits the cause of
action wholly or in part arises. The cause
of
action
arises
by
action
of
the
Government or authority and not by
residence of the person aggrieved."
Para - 16

Supply of Dhaincha Seeds made to the
Nigam/Institution -- terms of the agreement -
Nigam/Institution is under obligation to pay
the amount of seeds supplied by the petitioner
to the NAFED - on receipt of the amount from
Nigam/Institution,
the
NAFED
is
under
obligation to make the payment to the
petitioner for the Seeds supplied by the
petitioner to the Nigam/Institution situated at
State of Bihar - Agreement executed at
Lucknow between the petitioner and National
Agriculture Cooperative Marketing Federation
of India (in short "NAFED") and the Dhaincha
Seeds were supplied to the opposite party No.
4/Bihar State Beej Nigam Limited, Bihar
(Nigam/Institution) - main dispute is between
petitioner/supplier
and
Nigam/Institution,
which is situated in the State of Bihar - all the
transaction with regard to supply of Seeds
took place within territories of State of Bihar.
Para - 6,9,11,13

HELD:- Taking into consideration the facts of
the case as also keeping in view the principles
regarding
cause
of
action,
territorial
jurisdiction and forum conveniens, we are of
the view that the present writ petition, for
payment of due amount, which in fact has to
be paid first by the opposite party No. 4-Bihar
State Beej Nigam, Bihar to NAFED and
thereafter the petitioner can get the same
from NAFED, is not maintainable before this
Court. Para -18

Writ petition dismissed.(E-7)

List of cases cited:-

1. Om Prakash Srivastava Vs U.O.I. & anr.,
(2006) 6 SCC 207

2. Nawal Kishore Sharma Vs U.O.I., (2014) 9
SCC 329,

3. Daya Shankar Bharadwaj Vs Chief of Air
Staff, New Delhi & ors., AIR 1988 Allahabad
36

(Delivered by Hon'ble Saurabh Lavania, J.)

1. Sri Amol Kumar, learned counsel
for the petitioners, Sri Nishant Shukla,
learned counsel for the Union of India
and Sri Vijayant, learned counsel for the
National
Agriculture
Cooperative
Marketing Federation of India (in short