# Manoj Kumar Tiwari v. U.O.I. & Ors

- **Citation:** (2021) 1 ILRA 463
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-12-08
- **Case number:** Writ C No. 19615 of 2020
- **Bench:** Yashwant Varma
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/manoj-kumar-tiwari-v-u-o-i-ors-46030
- **Pages:** 4

## Headnote

(A) Civil Law - Issuance of writ - A
challenge to an evaluation undertaken
by examining bodies, in any case, on a
mere allegation that "possibility of
errors in calculation of marks cannot
be
ruled
out..."
cannot
be
countenanced
-
must
stand
on
sounder footing. (Para -5)

Petitioner seeks the issuance of a writ
commanding the respondents to undertake a
revaluation of his answer script submitted in
respect of the subject- "Community and
Elementary
Education"
-
Petitioner
participated in an entrance examination for
granting admission to its D.EL.E.D. course -
unsuccessful
in
obtaining
admission
-
petitioned Court for reevaluation of the
answer
script
in
question
-
prior
to
approaching Court petitioner has not
obtained a copy of answer script from the
respondents - procedure that could have been
adopted . (Para -2,3)

HELD:-
An
evaluation
undertaken
by
examining bodies should not be viewed with
suspicion unless it is prima facie established
that it was not fair or transparent. Courts
must necessarily be wary of entertaining such
challenges unless it be well substantiated and
found to rest on a strong pedestal which is
likely
to
succeed..
There
must
be
a
demonstrable illegality in the evaluation
undertaken and only in such rare and
exceptional cases would the Court be legally
justified in invoking its jurisdiction. The
petitioner here has miserably failed to meet
the tests as evolved.(Para - 5,8)

Writ Petition dismissed. (E-6)

List of Cases cited :-

## Text

1 All. Manoj Kumar Tiwari Vs. U.O.I. & Ors.
463
general public with regard to the subject
matter of the writ petition. There must be
material to show that the petitioner has
suffered some injury or has been denied or
deprived of a legal right. In the absence of
the aforesaid, he cannot be said to be a
"person aggrieved" so as to maintain the
writ petition.

7. In this regard we may refer to the
decision in Ravi Yashwant Bhoir v
District Collector, Raigad and others
(2012) 4 SCC 407 wherein it was held that
in the absence of any injury to his legal
right or legally protected interest, a
complainant cannot claim status of a party
to an adversarial litigation.

8. For the aforestated reasons we are
not inclined to entertain the present writ
petition, and the same is accordingly
dismissed.
----------
(2021)01ILR A463
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 08.12.2020

BEFORE

THE HON'BLE YASHWANT VARMA, J.

Writ C No. 19615 of 2020

Manoj Kumar Tiwari ...Petitioner
Versus
U.O.I. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Dhirendra Singh, Sri Ajay Pratap Rao

Counsel for the Respondents:
A.S.G.I., Sri Dhananjay Awasthi

(A) Civil Law - Issuance of writ - A
challenge to an evaluation undertaken
by examining bodies, in any case, on a
mere allegation that "possibility of
errors in calculation of marks cannot
be
ruled
out..."
cannot
be
countenanced
-
must
stand
on
sounder footing. (Para -5)

Petitioner seeks the issuance of a writ
commanding the respondents to undertake a
revaluation of his answer script submitted in
respect of the subject- "Community and
Elementary
Education"
-
Petitioner
participated in an entrance examination for
granting admission to its D.EL.E.D. course -
unsuccessful
in
obtaining
admission
-
petitioned Court for reevaluation of the
answer
script
in
question
-
prior
to
approaching Court petitioner has not
obtained a copy of answer script from the
respondents - procedure that could have been
adopted . (Para -2,3)

HELD:-
An
evaluation
undertaken
by
examining bodies should not be viewed with
suspicion unless it is prima facie established
that it was not fair or transparent. Courts
must necessarily be wary of entertaining such
challenges unless it be well substantiated and
found to rest on a strong pedestal which is
likely
to
succeed..
There
must
be
a
demonstrable illegality in the evaluation
undertaken and only in such rare and
exceptional cases would the Court be legally
justified in invoking its jurisdiction. The
petitioner here has miserably failed to meet
the tests as evolved.(Para - 5,8)

Writ Petition dismissed. (E-6)

List of Cases cited :-

1. C.B.S.E. Vs Aditya Bandhopadhya & ors. ,
(2011) 8 SCC 497

2. Ran Vijay Singh Vs St. of U.P. , (2018) 2 SCC
357

3. High Court of Tripura Vs Tirtha Sarathi
Mukherjee , (2019) 16 SCC 663

(Delivered by Hon'ble Yashwant Varma, J.)
464 INDIAN LAW REPORTS ALLAHABAD SERIES

1. Heard learned counsel for the
petitioner, Sri Dhananjay Awasthi who
appears for respondent Nos. 2 and 3 and
Ms. Suman Jaiswal for the first respondent.

2. The petitioner seeks the issuance of
a writ commanding the respondents to
undertake a revaluation of his answer script
submitted in respect of the subject-
"Community and Elementary Education".
The issue itself arises in the backdrop of
the petitioner having participated in an
entrance examination conducted by the
second respondent for granting admission
to
its
D.EL.E.D.
course.
Being
unsuccessful in obtaining admission to that
course, he has petitioned this Court for
reevaluation of the answer script in
question.

3. It becomes pertinent to note that
prior to approaching this Court the
petitioner has not obtained a copy of the
answer script from the respondents, a
procedure that could have been adopted
and is permissible in law in light of the law
as declared by the Supreme Court in
Central Board of Secondary Education
Vs. Aditya Bandhopadhya and others1.
The Court is thus left to consider the reliefs
claimed in the petition solely on the basis
of the following averments as made in
paragraphs 9 to 12 of the writ petition
which read thus:-

9. That the petitioner has solved
the question paper to the best of his ability
but when the statement of marks awarded
to the petitioner in Sub Code No. 507 he
was shocked.

10. The the petitioner apprehends
that answer book of the subject Community
and Elementary Education on (Subject
Code No. 507) has not been properly
checked/evaluated.

11. That possibility of errors in
calculation of marks, cannot be ruled out,
but
unless
any
direction
to
ensure
rechecking or scrutiny is issued the
Institute may not take any step.

12. That the petitioner has good
academic career, he awarded 199/500 in
Purva
Madhyama,
323/600
in
Uttar
Madhyama, 1199/2200 in Shashtri Pariksha
and 590/900 in Acharya Pariksha and in
result of D.EL.Ed. Course subject Nos. 501
to 514 except Code No. 507 he awarded
good marks and he hopes that he will get
more than 28 marks."

4. The practice of approaching this
Court directly without obtaining copies of
the answer scripts or seeking directions
requiring examining bodies to produce
answer books cannot but be deprecated in
the strongest terms, discouraged and
curbed. The conduct of examinations by
educational authorities cannot be lightly
interfered with unless the petition rests on a
strong foundation and it is at least prima
facie established that there has been an
apparent and evident mistake in the process
of evaluation. The onus and burden on this
aspect lies solely on the petitioner and is
one which must be discharged at the
threshold. In order to establish a stark or
glaring mistake in the process of evaluation
it is imperative for the petitioner to
establish from the record that an apparent
illegality has been committed by the
examiner. That cannot possibly be done
unless a copy of the answer script has been
obtained and the petitioner upon a perusal
thereof finds a manifest error or illegality in
the evaluation undertaken. The burden to
prove that a fair evaluation was in fact
undertaken cannot stand shifted or placed
upon the examining body unless this
primary fact is established by the petitioner.
This essentially since the examining body
1 All. Manoj Kumar Tiwari Vs. U.O.I. & Ors.
465
cannot be commanded to prove a fact in the
negative.

5. An evaluation undertaken by
examining bodies should not be viewed
with suspicion unless it is prima facie
established that it was not fair or
transparent. Courts must necessarily be
wary of entertaining such challenges unless
it be well substantiated and found to rest on
a strong pedestal which is likely to succeed.
In any case a foray like the present cannot
be entertained simply on the basis of a
stated apprehension or the candidate's own
assessment
of
performance
in
the
examination. A challenge to an evaluation
undertaken by examining bodies, in any
case, on a mere allegation that "possibility
of errors in calculation of marks cannot be
ruled out..." cannot be countenanced. It
must necessarily, for reasons aforenoted,
stand on sounder footing.

6. More fundamentally the Court
takes notes of the submission of Sri
Awasthi who submits that no provision for
reevaluation exists in terms of which a
direction as claimed by the petitioner may
be issued. While the absence of a provision
for reevaluation may not completely
denude the Court from examining a
challenge to an evaluation process under
Article 226 of the Constitution, its powers
may be invoked in rare and exceptional
cases and where the error or illegality is
patent and manifest. The Court deems it
apposite to notice the following conclusion
as ultimately pronounced in Ran Vijay
Singh Vs. State of U.P.2

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
rationalisation" and only in rare or
exceptional cases that a material error has
been committed;

7. The above position was again
explained in High Court of Tripura v.
Tirtha Sarathi Mukherjee3 with the
Supreme Court observing: -

20.The question however arises
whether even if there is no legal right to
demand re-valuation as of right could there
arise circumstances which leave 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 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 the
slightest manner of doubt, he is treated as
having given the wrong answer and
consequently
the
candidate
is
found
disentitled to any marks.

21.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
466 INDIAN LAW REPORTS ALLAHABAD SERIES
right and another to say that in no
circumstances whatsoever where there is no
provision for re-valuation will the writ
court exercise its undoubted constitutional
powers? We reiterate that the situation can
only be rare and exceptional."

8. As is evident from the above
exposition of the law on the subject, there
must be a demonstrable illegality in the
evaluation undertaken and only in such rare
and exceptional cases would the Court be
legally justified in invoking its jurisdiction.
The petitioner here has miserably failed to
meet the tests as evolved and noticed
above.

9. The writ petition consequently fails
and is dismissed.
----------
(2021)01ILR A466
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 08.12.2020

BEFORE
THE HON'BLE ALOK MATHUR, J.

U/S 482/378/407 No. 2088 of 2020

Manish Yadav ...Applicant
Versus
State of U.P. & Ors. ...Opp. Parties

Counsel for the Applicant:
Shailender Singh, Ankit Tiwari

Counsel for the Opp. Parties:
G.A.

(A) Code of Criminal Procedure, 1973 -
Section 107, 111 - Practice & Procedure
- Notice - - The material is the foundation of
the exercise of power u/s 107 Cr.P.C. which is
clearly lacking in the notice. The notice either
should clearly disclose the material indicating
the satisfaction of the Magistrate or the same
should be accompanied by the Police report
and other material being relied upon by the
Magistrate at the time of issuing of notice, in
this case both are missing. (Para 14)

Application Allowed. (E-8)

List of Cases cited :-

1.
Madhu
Limaye
Vs
Sub-
Divisional
Magistrate, Monghyr & ors., (1970) 3 SCC 746

2. Sheo Raj Yadav Vs St. of U.P. & 2 ors.,
Criminal Misc. No. 492 of 2010

(Delivered by Hon'ble Alok Mathur, J.)

1. Heard Sri Shailender Singh,
learned counsel for the applicant as well as
learned Additional Government Advocate
for the State of U.P.

2. By means of present application u/s
482 Cr.P.C. the applicant has challenged
the notice dated 28.07.2020, issued by
Assistant
Police
Commissioner/Special
Executive
Magistrate,
Lucknow
purportedly issued under Section 107
Cr.P.C., directing the applicant to show
cause as to why he should not be directed
to execute personal bond for maintaining
peace and for which purpose applicant has
been directed to appear in the office of
Assistant Police Commissioner, Lucknow
on 24.08.2020.

3. Learned counsel for the applicant
has assailed the impugned notice on the
ground that no reasons have been disclosed
in the said notice and from the show cause
notice applicant is unable to tender any
response to the same as there is no mention
or whisper about the acts which may have
caused breach of peace for which applicant
is being held liable to.

4. A notice under Section 107 Cr.P.C.
is not an empty formality but is issued with