# The Institute of Chartered Accountants of India v. Ashutosh Nigam & Anr

- **Citation:** (2020) 2 ILRA 1620
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-02-14
- **Case number:** Special Appeal No. 263 of 2014
- **Bench:** Anil Kumar, Saurabh Lavania
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/the-institute-of-chartered-accountants-of-india-v-ashutosh-nigam-anr-45549
- **Pages:** 11

## Headnote

A.S.G.,
Ajay
Kishor
Pandey,
Satish
Chandra Rai, Sudeep Kumar

A. Civil Law-Education - Re-evaluation
of answer sheet - Chartered Accountants
Act,
1949;
Chartered
Accountant
Regulation, 1988: Regulation 39(7) - The
Regulation
39(7)
only
permits
the
Council/Institute to amend the result in
any case, where it is found to be affected
by error, malpractice, fraud, improper
conduct or other matter, of whatever
nature. The Court in absence of any
provision,
neither
can
direct
for
reevaluation, nor can act as an expert and
evaluate the answers and direct to award
numbers as per its opinion. (Para 17, 19)

Special Appeal allowed. (E-4)

Precedent followed:

## Text

1620 INDIAN LAW REPORTS ALLAHABAD SERIES
(2020)02ILR A1620

APPELLATE JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 14.02.2020

BEFORE

THE HON'BLE ANIL KUMAR, J.
THE HON'BLE SAURABH LAVANIA, J.

Special Appeal No. 263 of 2014

The Institute of Chartered Accountants of
India ...Appellant
Versus
Ashutosh Nigam & Anr. ...Respondents

Counsel for the Appellant:
Amit Jaiswal

Counsel for the Respondents:
A.S.G.,
Ajay
Kishor
Pandey,
Satish
Chandra Rai, Sudeep Kumar

A. Civil Law-Education - Re-evaluation
of answer sheet - Chartered Accountants
Act,
1949;
Chartered
Accountant
Regulation, 1988: Regulation 39(7) - The
Regulation
39(7)
only
permits
the
Council/Institute to amend the result in
any case, where it is found to be affected
by error, malpractice, fraud, improper
conduct or other matter, of whatever
nature. The Court in absence of any
provision,
neither
can
direct
for
reevaluation, nor can act as an expert and
evaluate the answers and direct to award
numbers as per its opinion. (Para 17, 19)

Special Appeal allowed. (E-4)

Precedent followed:

1. Board of Secondary Education Vs.
Pravas Ranjan Panda and another, (2004)
13 SCC 383 (Para 5)

2.
Himachal
Pradesh
Public
Service
Commission
Vs.
Mukesh
Thakur
and
another, (2010) 6 SCC 759 (Para 5)
3. Maharashtra State Board of Secondary and
Higher Secondary Education and another Vs.
Paritosh Bhupesh Kurmarsheth, AIR 1984 SC
1543; (1984) 4 SCC 27 (Para 5, 15)

4. The Secretary, All India Pre-Medical / PreDental Examination, C.B.S.C. and others Vs.
Khushboo Shrivastava and others, (2014) 14
SCC 523 (Para 16)

5. Ran Vijay Singh and others Vs. State of U.P.
and others, 2017 SCC Online SC 1448 (Para 18)

Precedent distinguished:

1. Manish Ujwal and others Vs. Maharishi
Dayanand Saraswati University and others,
(2005) 13 SCC 144 (Para 9)

2. High Court of Tripura through the Registrar
General Vs. Tirtha Sarathi Mukherjee and
others, 2019 SCC Online SC 139 (Para 10)

3. Saumitra Gigodia Vs. Union of India and
others, 2018 (2) ALJ 98 (Para 11)

Present petition challenges judgment and
order
dated
28.04.2013,
passed
by
learned Single Judge in WP No. 5887(MS)
of 2013.

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

1. Heard Sri Amit Jaiswal, learned
counsel for the appellant and Sri Sudeep
Kumar, learned counsel for the opposite
party no.1 and Sri Ajay Kishore Pandey,
learned counsel for opposite party no.2.

2. Facts, in brief, of the present case
are that Institute of Chartered Accountants
of India (herein after referred as ''Institute')
is a statutory body created by an Act of
Parliament viz the Chartered Accountants
Act,1949 (hereinafter referred at ''Act').
Further , as per regulations which were
framed by the Institute a person who has to
become a Chartered Accountant has to
2 All. The Institute of Chartered Accountants of India Vs. Ashutosh Nigam & Anr.
1621
enroll with the Institute and he has to clear
compulsory paper in the Intermediate and
final
examination
conducted by
the
Institute.

3. In the present case , writ
petitioner/ Ashutosh Nigam appeared in
the examination for the purpose of
enrollment
of
Chartered
Accountant
conducted by the Institute. He was not
successful in the said examination, so he
approached this Court by filing Writ
Petition No.5887(MS) of 2013 (Ashutosh
Nigam Vs. Union of India, Ministry of
Human Resources through Secretary and
another) with the following main relief:-

"(a) Issue writ, order or direction in
the nature of mandamus commanding the
opposite parties to evaluate/ re-evaluate the
answer sheet of the petitioner for the corporate
and allied Laws paper.

(b) Issue, writ, order or direction in
the nature of Mandamus commanding the
opposite parties produce the answer sheet of
the petitioner of the corporate and Allied Laws
Paper and to get them evaluated by some
independent agency.

(c) Issue writ, order or direction in
the nature of Mandamus commanding the
opposite parties to declare the petitioner as
having passed in Corporate and Allied Laws
paper for the final group examination, 2013.

(d) Award costs in favour of the
petitioner and against the opposite parties and
to pass such further or other orders as may be
considered just and proper in the interest of
justice and in the circumstances of the case."

4. After exchange of pleadings , the writ
petition was allowed vide judgment and order
dated 28.04.2014 which reads as under:-

" Heard Shri Manish Mathur,
learned counsel for the petitioner as well as Sri
Vibhu Shanker, learned counsel for respondent
no. 2.

Petitioner seeks reevaluation of
the answer sheets of Corporate and Allied
Law
papers.
Through
the
rejoinder
affidavit he has brought on record the
relevant
documents
i.e,
(i)
answer
sheet,(ii)
modal
question
answers
prepared by the Institute. He drew the
attention of this Court towards answer no.
1 A, 1 D and 4 B as well as answers
suggested by the Institute and submitted
that after comparing those it is obvious
that the petitioner answered the questions
in the same very manner. Therefore, he
should have been awarded total marks
assigned to each and every answer but it
has not been done so far,rather in each
answer
marks
have
been
reduced
deliberately.
After
reading
over
the
comparative chart of the answers, the
mistake appears to be apparent.

Shri Vibhu Shanker, learned
counsel for the respondent has raised
questions on maintainability of the writ
petition for the relief as sought therein on
the ground that the relief of re-evaluation
of answer book is not maintainable unless
the rule permits so. He further submits
that there is no such rule in the Institute
concerned. He also submitted that there
are several decisions propounded by
Hon'ble the Supreme Court on this point.
he pointed out some decisions which are
referred to hereunder;

(i)Board of Secondary Education
Vs. Pravas Ranjan Panda and anohter
(2004) 13 Supreme Court Cases 383,

(ii)Himachal
Pradesh
Public
Service Commission Vs. Mukesh Thakur
and another (2010) 6 Supreme Court
Cases 759,

(iii)Maharashtra State Board of
Secondary
and
Higher
Secondary
Education and another Vs. Paritosh
1622 INDIAN LAW REPORTS ALLAHABAD SERIES
Bhupesh Kurmasheet (AIR 1984 Supreme
Court 1543).

Learned counsel for the petitioner is
also unable to produce any such rule, framed
by the Institute, which permits the reevaluation. However, after going through the
comparative chart of the answers given by the
petitioner as well as the answers suggested by
the Institute, I find that there is no difference in
the answers written by the petitioner and
suggested by the Institute.Therefore, without
applying any technical mind over there, I am of
the view that the petitioner should have been
awarded full marks allotted to each and every
question. Therefore, I feel it appropriate to
make an observation for the Institute
concerned to re-consider petitioner's case as
the error committed by the authority in
awarding marks is apparent. Besides this Mr
Mathur also points out that Regulation 39 of
the Regulations framed by the Institute permits
the authority to correct mistake. Therefore, it
would be appropriate for them to award
appropriate marks to the petitioner in the
interest of his career.

In the aforesaid manner, this Court
interfered with the matter and issued directions
accordingly. I hope that the Institute shall
come forward to correct its mistake within
fifteen days and communicate result to the
petitioner forthwith.

In the aforesaid term, the writ
petition stands disposed of finally."

5. The appellant has challenged the
judgment and order dated 28.04.2013 on the
ground that there is no provisions of reevaluation in the regulation which has been
framed by the Institute, so the direction which
has been given by Hon'ble Single Judge is
contrary to law as laid down by Hon'ble Apex
Court in the cases namely, (I) Board of
Secondary Education Vs. Pravas Ranjan
Panda and another ( 2004) 13 Supreme
Court Cases 383, (ii) Himachal Pradesh
Public Service Commission Vs. Mukesh
Thakur and another ( 2010) 6 Supreme
Court Cases 759, (iii) Maharashtra State
Board of Secondary and Higher Secondary
Education and another Vs. Paritosh Bhupesh
Kurmasheet ( AIR 1984 Supreme Court
1543).

6. It is stated that the relevant
judgments were placed before the Hon'ble
Single Judge but the same were not
considered while passing the judgment and
order dated 28.04.2014, under appeal, and
the impugned judgement has been passed,
so the present special appeal has been filed
and on 15.05.2014, this Court has passed
an interim order, which on reproduction
reads as under:-

"Sri
Manish
Mathur
has
accepted
notice
on
behalf
of
the
respondent no.1, while Miss. Alka Verma,
learned counsel has accepted notice on
behalf of respondent no.2.

Both may file counter affidavit
within four weeks. Rejoinder affidavit, if
any, may be filed within two weeks
thereafter.

List after six weeks.

Apart from other arguments, it is
urged that there being no provision under
the rules for evaluation, the learned Single
Judge exceeded his jurisdiction. It is
further urged that even otherwise. the
answers given by the respondent petitioner
was quite contrary to the answers
provided in the model answers of the
Institute.

Accordingly, the operation of the
order and judgment dated 28.4.2014
passed in Writ Petition No.5887 (M/S) of
2013 shall remain stayed."

7. Learned counsel for the appellant
also submitted that that the observations
2 All. The Institute of Chartered Accountants of India Vs. Ashutosh Nigam & Anr.
1623
which has been given by Hon'ble Single
Judge
while
passing
the
impugned
judgment dated 28.04.2014 is not correct
as per record and the material on record
placed before him as well as contrary to
law. Accordingly, he requests that the
present appeal may be allowed.

8. Sri Sudeep Kumar, learned
counsel for the respondents submitted that
there is no error in the judgement passed
by Learned Single Judge rather the same is
in accordance with regulation 39 (7) of the
Chartered Accountant
Regulation1988,
which reads as under:-

"39(7) In any case where it is
found that the result of an examination
has
been
affected
by
error,
malpractice, fraud, improper conduct
or other matter, of whatever nature, the
Council shall have the power to amend
such result, in such manner as shall be
in accordance with the true position
and to make such declaration as the
Council shall consider necessary in
that behalf

Provided
that
no
such
amendment
shall
be
made
which
adversely affects a candidate, without
giving him an opportunity of being
heard:

Provided further that in the
event of any error not arising out of
any act or default of a candidate,
proceedings for amendment adversely
affecting the candidate shall not be
initiated after the expiry of a period of
oe month from the date of the
declaration of result."

9. He further submitted that the
judgment passed by learned single judge is
also in accordance with law laid down by
Hon'ble the Apex Court in the case of
Manish Ujwal and others Vs. Maharishi
Dayanand
Saraswati
University
and
others (2005) 13 SCC 744 where in para 9
and 10 it has been held as under:-

"9. In Kanpur University v.
Samir Gupta [(1983) 4 SCC 309]
considering a similar problem, this Court
held that there is an assumption about the
key answers being correct and in case of
doubt, the Court would unquestionably
prefer the key answers. It is for this reason
that we have not referred to those key
answers in respect whereof there is a
doubt as a result of difference of opinion
between the experts. Regarding the key
answers in respect whereof the matter is
beyond the realm of doubt, this Court has
held that it would be unfair to penalise the
students for not giving an answer which
accords with the key answer, that is to say,
with an answer which is demonstrated to
be wrong. There is no dispute about the
aforesaid
six
key
answers
being
demonstrably wrong and this fact has
rightly not been questioned by the learned
counsel for the University. In this view,
students cannot be made to suffer for the
fault and negligence of the University.

10.
The
High
Court
has
committed a serious illegality in coming to
the conclusion that "it cannot be said with
certainty that answers to the six questions
given in the key answers were erroneous
and incorrect". As already noticed, the key
answers are palpably and demonstrably
erroneous. In that view of the matter, the
student community, whether the appellants
or intervenors or even those who did not
approach the High Court or this Court,
cannot be made to suffer on account of
errors committed by the University. For
the present, we say no more because there
is nothing on record as to how this error
crept up in giving the erroneous key
1624 INDIAN LAW REPORTS ALLAHABAD SERIES
answers and who was negligent. At the
same time, however, it is necessary to note
that the University and those who prepare
the key answers have to be very careful
and abundant caution is necessary in these
matters for more than one reason. We
mention few of those; first and paramount
reason being the welfare of the student as
a wrong key answer can result in the merit
being made a casualty. One can well
understand the predicament of a young
student at the threshold of his or her
career if despite giving correct answer, the
student suffers as a result of wrong and
demonstrably erroneous key answers; the
second reason is that the courts are slow
in interfering in educational matters
which,
in
turn,
casts
a
higher
responsibility on the University while
preparing the key answers; and thirdly, in
cases of doubt, the benefit goes in favour
of the University and not in favour of the
students.
If
this
attitude
of
casual
approach in providing key answers is
adopted
by
the
persons
concerned,
directions may have to be issued for taking
appropriate action, including disciplinary
action, against those responsible for
wrong and demonstrably erroneous key
answers, but we refrain from issuing such
directions in the present case."

10. Sri Sandeep Kumar, in support of his
case, has also placed reliance on the judgment
passed by the Hon'ble Apex Court in the case
of High Court of Tripura through the
Registrar
General
Vs.
Tirtha
Sarathi
Mukherjee and others, 2019 SCC Online SC
139, wherein the Hon'ble Apex Court in paras
19 20 and 23 held as under:-

"19. 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 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.

20. 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 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.

23. In this case we have already
noted that the writ petition was filed
2 All. The Institute of Chartered Accountants of India Vs. Ashutosh Nigam & Anr.
1625
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 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
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."

11. Reliance on the judgment of the
Division Bench of this Court passed in the
case of Saumitra Gigodia Vs. Union of
India and others, 2018 (2) ALJ 98 has
also been placed, where in this Court in
paras 21 and 22 observed as under:-

"21. Thus, we find that the
opinion of the University or the expert,
normally, should be accepted as it is
assumed that such experts are well versed
in their subject. We are further of the
opinion that the decision of the examining
body or the expert is not beyond judicial
review. The prime consideration is to
maintain the fairness of the examination
and welfare of the students/ candidates,
inasmuch as, in the event a wrong answer
key is accepted, it would alter the fate of
many candidates. The object of conducting
an examination is to assess the merit of the
candidates and to find out as to who is
most suitable one for admission. The
object of conducting a test would be
defeated in case a wrong answer given is
held to be beyond judicial review.

22. Normally, the Court should
be cautious in interfering with the opinion
of the expert but where it is found that the
answer keys are demonstrably wrong, that
is to say, it cannot be such as no
reasonable body of men, well versed in the
particular subject, would regard it as
1626 INDIAN LAW REPORTS ALLAHABAD SERIES
correct, in that event the Court should
exercise its writ jurisdiction and ensure
that the error is rectified."

12. Sri Sudeep Kumar, learned
counsel for the respondent no.1 further
submitted that in the present case, the
learned Single Judge the pleadings on
record and comparative chart, which was
produced by the writ petitioner-respondent
no.1 before the writ court, as also the
answers suggested by the Institute and
thereafter the writ court passed the
judgment dated 28.04.2014, so it is not a
case of re-evaluation rather it is a case
where Learned Single Judge has passed
the judgment after comparing the answers,
which were given by the writ petitioner/
respondent no.1 with the model answers,
so the present appeal lacks merit and is
liable to be dismissed.

13. In rebuttal, Sri Amit Jaiswal,
learned counsel for the appellant submitted
that it is totally incorrect as a matter of fact
the answers given by the writ petitioner/
respondent
no.1
in
examination
for
enrollment as Chartered Accountant are
not same or similar to the answers as
suggested in model answers provided by
the Institute. Thus, the writ court exceeded
its jurisdiction by acting as an expert of the
subject. The judgment in appeal is
contrary to settled principles on the issue.
Prayer is to allow the appeal.

14. We have heard learned counsel
for the parties and gone through the
record.

15. So far the re-evaluation of
answer book is concerned, there is no
provision under Regulations or Statute of
the Institute,the examination conducting
body, and as such the court cannot direct
for re-evaluation as held by Hon'ble Apex
Court in the case of Maharashtra State
Board
of
Secondary
and
Higher
Secondary Education and another Vs.
Paritosh Bhupesh Kumar Sheth and
others (1984) 4 SCC 27 where in para 12
it has been held as under :-

"12. Though the main plank of
the arguments advanced on behalf of the
petitioners before the High Court appears
to have been the plea of violation of
principles of natural justice, the said
contention did not find favour with the
learned Judges of the Division Bench. The
High
Court
rejected
the
contention
advanced on behalf of the petitioners that
non-disclosure or disallowance of the right
of inspection of the answer books as well
as denial of the right to ask for a
revaluation
to
examinees
who
are
dissatisfied with the results visits them
with adverse civil consequences. The
further argument that every adverse
"verification" involves a condemnation of
the examinees behind their back and hence
constitutes a clear violation of principles
of natural justice was also not accepted by
the High Court. In our opinion, the High
Court was perfectly right in taking this
view and in holding that the "process of
evaluation of answer papers or of
subsequent verification of marks" under
clause (3) of Regulation 104 does not
attract the principles of natural justice
since no decision-making process which
brings about adverse civil consequences to
the examinees is involved. The principles
of natural justice cannot be extended
beyond reasonable and rational limits and
cannot be carried to such absurd lengths as
to make it necessary that candidates who
have taken a public examination should be
allowed to participate in the process of
evaluation of their performances or to
2 All. The Institute of Chartered Accountants of India Vs. Ashutosh Nigam & Anr.
1627
verify the correctness of the evaluation
made by the examiners by themselves
conducting an inspection of the answer
books and determining whether there has
been a proper and fair valuation of the
answers by the examiners. As succinctly
put by Mathew, J. in his judgment in the
Union of India v. Mohan Lal Kapoor
[(1973) 2 SCC 836 : 1974 SCC (L&S) 5 :
(1974) 1 SCR 797 : (1973) 2 LLJ 504] it is
not expedient to extend the horizon of
natural justice involved in the audi alteram
partem rule to the twilight zone of mere
expectations, however great they might be.
[SCC para 56, p. 863: SCC (L&S) p. 31].
The challenge levelled against the validity
of clause (3) of Regulation 104 based on
the plea of violation of natural justice, was
therefore, rightly rejected by the High
Court."

16. Further Hon'ble the Apex Court
in the case of The Secretary, All India
Pre- Medical/ Pre-Dental Examination,
C.B.S.E. and others Vs. Khushboo
Shrivastava and others, (2014) 14 SCC
523 has held in para 7 and 8 as under:-

"7. We find that a three-Judge
Bench of this Court in Pramod Kumar
Srivastava v. Chairman, Bihar Public
ServiceCommission, Patna & Ors. (2004)
6 SCC 7141 has clearly held relying on
Maharashtra State Board of Secondary
and Higher Secondary Education & Anr. v.
Paritosh
Bhupeshkumar
Sheth
&
Ors.(1984)4 SCC 27 that in the absence of
any provision for the re-evaluation of
answers 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.Chairman,
Bihar
Public
Service
Commission,
Patna
&
Ors.
(2004)6 SCC 714 was followed by another
three-Judge Bench of this Court in Board
of Secondary Education v. Pravas Ranjan
Panda & Anr. [(2004) 13 SCC 383] in
which the direction of the High Court for
reevaluation of answers 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 answers
books in the rules.

8. In the present case, the byelaws of the All India Pre-Medical/PreDental
Entrance
Examination,2007
conducted by the CBSE did not provide for
re-examination or reevaluation of answers
sheets. Hence, the appellants could not
have allowed such re-examination or reevaluation on the representation of the
respondent no.1 and accordingly rejected
the representation of the respondent no.1
for reexamination/ re-evaluation of her
answers sheets. The respondent no.1,
however, approached the High Court and
the learned Single Judge of the High Court
directedproduction of answer sheets on the
respondent no.1 depositing a sum of
Rs.25,000/- and when the answer sheets
were produced, the learned Single Judge
himself compared the answers of the
respondent no.1 with the model answers
produced by the CBSE and awarded two
marks for answers given by the respondent
no.1 in the Chemistry and Botany, but
declined to grant any relief to the
respondent no.1. When respondent no.1
filed the LPA before the Division Bench of
the High Court, the Division Bench also
examined
the
two
answers
of
the
respondent no.1 in Chemistry and Botany
and agreed with the findings of the learned
Single Judge that the respondent no.1
deserved two additional marks for the two
answers. In our considered opinion,
1628 INDIAN LAW REPORTS ALLAHABAD SERIES
neither the learned Single Judge nor the
Division Bench of the High Court could
have substituted his/its own views for that
of the examiners and awarded two
additional marks to the respondent no.1
for the two answers in exercise of powers
of judicial review under Article 226 of the
Constitution as these are purely academic
matters. This Court in Maharashtra State
Board of Secondary and Higher Secondary
Education
&
Anr.
v.
Paritosh
Bhupeshkumar Sheth & Ors. (supra) has
observed :

".... As has been repeatedly
pointed out by this Court, the Court should
be extremely reluctant to substitute its own
views as to what is wise, prudent and
proper in relation to academic matters in
preference
to
those
formulated
by
professional men possessing technical
expertise and rich experience of actual
day-to-day
working
of
educational
institutions
and
the
departments
controlling them. It will be wholly wrong
for the Court to make a pedantic and
purely idealistic approach to the problems
of this nature, isolated from the actual
realities and grass root problems involved
in the working of the system and unmindful
of the consequences which would emanate
if a purely idealistic view as opposed to a
pragmatic one were to be propounded. ..."

17. In regard to the arguments
advanced by learned counsel for the
respondent
no.1,while
supporting
the
judgment under challenge in the present
appeal, that in view of the provisions as
provided under Regulation 39(7) of the
Chartered Accountant Regulation,1988,
quoted herein above, the court has power
to telly the answers given by the writ
petitioner model answer and thereafter
direct the appellant to award appropriate
marks to the writ petitioner in the interest
of the career, we have considered the
Regulation
39(7)
of
the
Chartered
Accountant Regulation,1988 and a perusal
thereof it appears that under Regulation
39(7) the Council has power to amend the
result in any case where it is found that the
result of an examination has been affected
by error, malpractice, fraud, improper
conduct or other matter, of whatever
nature. Thus, we are of the view that
keeping in view the provision as envisaged
in Regulation 39(7), the Court neither can
direct for re-evaluation nor the court is
empowered to act as an expert and record
the finding to the effect that "I find tht
there is no difference in the answers
written by the petitioner and suggested by
the Institute."

18. Further, on the point in issue,
Hon'ble the Supreme Court in the case of
Ran Vijay Sigh and others Vs. State of
U.P. and others, 2017 SCC Online SC
1448 in paras 33 to 37 has held as under:-

"33. The law on the subject is
therefore, quite clear and we only propose
to highlight a few significant conclusions.
They are: (i) If a statute, Rule or
Regulation governing an examination
permits the re-evaluation of an answer
sheet or scrutiny of an answer sheet as a
matter of right, then the authority
conducting the examination may permit it;
(ii) 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; (iii) The Court should not
2 All. The Institute of Chartered Accountants of India Vs. Ashutosh Nigam & Anr.
1629
at all re-evaluate or scrutinize the answer
sheets of a candidate - it has no expertise
in the matter and academic matters are
best left to academics; (iv) The Court
should presume the correctness of the key
answers and proceed on that assumption;
and (v) In the event of a doubt, the benefit
should go to the examination authority
rather than to the candidate.

34. On our part we may add that
sympathy or compassion does not play any
role in the matter of directing or not
directing re-evaluation of an answer sheet.
If
an
error
is
committed
by
the
examination authority, the complete body
of
candidates
suffers.
The
entire
examination process does not deserve to
be derailed only because some candidates
are
disappointed
or
dissatisfied
or
perceive some injustice having been
caused to them by an erroneous question
or an erroneous answer. All candidates
suffer equally, though some might suffer
more but that cannot be helped since
mathematical precision is not always
possible. This Court has shown one way
out of an impasse - exclude the suspect or
offending question.

35.It is rather unfortunate that
despite several decisions of this Court,
some of which have been discussed above,
there is interference by the Courts in the
result of examinations. This places the
examination authorities in an unenviable
position where they are under scrutiny and
not the candidates. Additionally, a massive
and sometimes prolonged examination
exercise
concludes
with
an
air
of
uncertainty. While there is no doubt that
candidates put in a tremendous effort in
preparing for an examination, it must not
be forgotten that even the examination
authorities put in equally great efforts to
successfully conduct an examination. The
enormity of the task might reveal some
lapse at a later stage, but the Court must
consider the internal checks and balances
put in place by the examination authorities
before interfering with the efforts put in by
the candidates who have successfully
participated in the examination and the
examination
authorities.
The
present
appeals are a classic example of the
consequence of such interference where
there is no finality to the result of the
examinations even after a lapse of eight
years.
Apart
from
the
examination
authorities even the candidates are left
wondering
about
the
certainty
or
otherwise of the result of the examination -
whether they have passed or not; whether
their
result
will
be
approved
or
disapproved by the Court; whether they
will get admission in a college or
University or not; and whether they will
get recruited or not. This unsatisfactory
situation does not work to anybody's
advantage and such a state of uncertainty
results
in
confusion
being
worse
confounded. The overall and larger impact
of all this is that public interest suffers.

36.The facts of the case before us
indicate that in the first instance the
learned Single Judge took it upon himself
to actually ascertain the correctness of the
key answers to seven questions. This was
completely beyond his jurisdiction and as
decided
by
this
Court
on
several
occasions, the exercise carried out was
impermissible. Fortunately, the Division
Bench did not repeat the error but in a
sense, endorsed the view of the learned
Single Judge, by not considering the
decisions of this Court but sending four
key answers for consideration by a oneman Expert Committee.

37.
Having
come
to
the
conclusion that the High Court (the
learned Single Judge as well as the
Division Bench) ought to have been far
1630 INDIAN LAW REPORTS ALLAHABAD SERIES
more circumspect in interfering and
deciding on the correctness of the key
answers, the situation today is that there is
a third evaluation of the answer sheets and
a third set of results is now ready for
declaration. Given this scenario, the
options before us are to nullify the entire
re-evaluation process and depend on the
result declared on 14th September, 2010 or
to go by the third set of results. Cancelling
the
examination
is
not
an
option.
Whichever option is chosen, there will be
some candidates who are likely to suffer
and lose their jobs while some might be
entitled to consideration for employment."

19. The law on the subject is thus clear
that in absence of any provision, the students
have no right to re-evaluate the answer-sheet.
The Court in absence of any provision can not
direct for re-evaluation nor the court can act as
an expert and evaluate the answers and direct
to award numbers as per its opinion.

20. The grounds, which have been taken
by the writ petitioner in the writ petition under
Article 226 of the Constitution of India are not
sufficient for issuing directions to the appellant
to reconsider the case of the petitionerrespondent no.1 and grant appropriate marks,
which has been done by the writ court, as an
expert in the present case after going through
the comparative chart of the answers given by
the writ petitioner/ respondent no.1 as well as
the answers suggested by the Institute. There is
no provisions for re-evaluation in the
regulation specially Regulation 39(7) of the
Chartered Accountant Regulation,1988, as the
said provision only permits the Institute to
correct the mistake and award appropriate
marks .

21. So far as the judgments cited by Sri
Sudeep Kumar, learned counsel for the
respondent no.1 are concerned, we have
carefully gone through the aforesaid judgments
and to our view the same are not applicable in
the present case. In the judgments cited by
learned counsel for respondent no.1, the
Hon'ble the Apex Court has not propounded
the law that in absence of provision of reevaluation the High Court can direct for reevaluation or can act as expert in exercise of its
power under Article 226 of the Constitution of
India and compare the model answers with the
answers given by the candidates, who
appeared in the examination, as such the writ
petitioner-respondent no.1 cannot derive any
benefit from the same.

22. For the foregoing reasons, the
impugned
judgment
and
order
dated
28.04.2014 passed by learned Single Judge in
Writ Petition no.5887 (MS) of 2013 (Ashutosh
Nigam Vs. The Union of India, Ministry of
Human Resources through Secretary and
another) is not in accordance with law.

23. In the result, the Special Appeal is
allowed and the order dated 28.04.2014 passed
by learned Single Judge in Writ Petition
no.5887 (MS) of 2013 is set aside.

24. No order as to costs.
----------
(2020)02ILR A1630

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 28.01.2020

BEFORE

THE HON'BLE SAURABH LAVANIA, J.

Service Single No. 590 of 2010

Virendra Kumar Mishra ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel
for
the
Petitioner: