# Vishal Vaibhav v. State of U.P. & Ors

- **Citation:** (2021) 1 ILRA 332
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-11-25
- **Case number:** Writ C No. 22240 of 2020
- **Bench:** J.J. Munir
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/vishal-vaibhav-v-state-of-u-p-ors-46010
- **Pages:** 5

## Headnote

(A) Civil law - second re-evaluation of
marks - No regulation that may
permit a second re-evaluation - That
apart, re-evaluation once done, ought
to bring the grievance to an end - No
candidate can claim the right to a
successive re-evaluation until some
Examiner is persuaded to agree with
the Examinee about the assessment
of his own merit. (Para -7)

Petitioner admitted to the Bachelor of Dental
Surgery Course - asserts that he performed very
well in the academic curriculum - petitioner
1 All. Vishal Vaibhav Vs. State of U.P. & Ors.
333
wanted a re-evaluation of his marks obtained -
After re-evaluation, result - ''No Change' in both
the papers - petitioner's grievance has already
been placed in a second instance before the
Examiners, who have done a re-evaluation -
award not disturbed made in the first instance -
petitioner asks for a further re-evaluation -
seeks virtually a second re-evaluation.(Para -1,2
6)

HELD:- This matter relates to assessment of a
paper relating to a specialized branch of
medicine. This Court has no means to ascertain
nor the requisite expertise to determine if the
petitioner is right or the Examiners are wrong.
In a situation like this, the Examination
Authority is to be trusted for their conclusions.
It would be unwise for this Court to convert
itself into an expert and set about the task of
reopening
an
Examiner's
award
twice
done.(Para -7)

Writ Petition dismissed. (E-6)

List of Cases cited :-

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

## Text

332 INDIAN LAW REPORTS ALLAHABAD SERIES
be read as a whole. It is not permissible for
the court to substitute the terms of the
contract itself. No exceptions can be made
on the ground of equity. These principles
are well settled. Reference in this regard
may be had to the judgments of Hon'ble
Supreme Court in the case of Export
Credit Guarantee Corporation vs M/S.
Garg Sons International (2014) 1 SCC
686
(Paras-10
to
13),
Industrial
Promotion and Investment Corporation
of Orrisa vs. New India Assurance Co.
Ltd. (2016) 15 SCC 315 (paras-9 to 13),
General Assurance Society Ltd. vs
Chandumull Jain And Anr, 1966 SC
1644 (para-11), Suraj Mal Ram Niwas
Oil Mills Pvt. Ltd. Vs. United India
Insurance Co. Ltd., (2010) 10 SCC 567
(paras- 23 to 26), M/S Sumitomo Heavy
Industries Ltd vs Oil & Natural Gas
Company, (2010) 11 SCC 296 (para-36)
and Vikram Greentech (I) Ltd. & Anr.
vs New India Assurance Co. Ltd. (2009)
5 SCC 599 (para-17).

30. We have extracted certain relevant
portion of the insurance contract between
the petitioner and the State Government. As
per terms of the afore-noted contract,
income certificate in case of farmers, is not
required. The husband of the respondent
No.1 was a farmer. That apart, even if he is
assumed as labourer, yet the income of the
entire family had not exceeded Rs.75,000/-
as per own report of the petitioner dated
04.10.2019
and
the
report
of
the
investigator
of
the
petitioner
dated
25.11.2019 as noted in the impugned order.
As per terms of contract of insurance, the
petitioner is bound by the order of the
respondent No.3 and was also bound to
make payment within the time specified
failing which penalty of Rs.2,500/- per
week is payable to the claimant and yet the
petitioner has filed the present writ petition
instead of making the payment to the
respondent No.1. Thus, the present writ
petition is a frivolous writ petition.
Consequently, it deserves to be dismissed
with cost.

31. For all the reasons stated above,
the writ petition is dismissed with cost of
Rs.5,000/-. The petitioner shall comply
with the impugned order and shall make the
payment of awarded amount and the
penalty to the respondent No.1 forthwith.
----------
(2021)01ILR A332
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 15.12.2020

BEFORE

THE HON'BLE J.J. MUNIR, J.

Writ C No. 22240 of 2020

Vishal Vaibhav ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Anirudh Kumar Upadhyay

Counsel for the Respondents:
C.S.C., Sri Gagan Mehta

(A) Civil law - second re-evaluation of
marks - No regulation that may
permit a second re-evaluation - That
apart, re-evaluation once done, ought
to bring the grievance to an end - No
candidate can claim the right to a
successive re-evaluation until some
Examiner is persuaded to agree with
the Examinee about the assessment
of his own merit. (Para -7)

Petitioner admitted to the Bachelor of Dental
Surgery Course - asserts that he performed very
well in the academic curriculum - petitioner
1 All. Vishal Vaibhav Vs. State of U.P. & Ors.
333
wanted a re-evaluation of his marks obtained -
After re-evaluation, result - ''No Change' in both
the papers - petitioner's grievance has already
been placed in a second instance before the
Examiners, who have done a re-evaluation -
award not disturbed made in the first instance -
petitioner asks for a further re-evaluation -
seeks virtually a second re-evaluation.(Para -1,2
6)

HELD:- This matter relates to assessment of a
paper relating to a specialized branch of
medicine. This Court has no means to ascertain
nor the requisite expertise to determine if the
petitioner is right or the Examiners are wrong.
In a situation like this, the Examination
Authority is to be trusted for their conclusions.
It would be unwise for this Court to convert
itself into an expert and set about the task of
reopening
an
Examiner's
award
twice
done.(Para -7)

Writ Petition dismissed. (E-6)

List of Cases cited :-

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

(Delivered by Hon'ble J.J. Munir, J.)

1. The petitioner is a student of the
Bachelor of Dental Surgery Course at the
K.D.
Dental
College
and
Hospital,
Mathura, an affiliate college of the Dr.
Bhimrao Ambedkar University, Agra. The
petitioner was admitted to the Bachelor of
Dental
Surgery
Course
during
the
Academic Year 2014-15. He asserts that he
has performed very well in the academic
curriculum. He has appeared in the final
professional examination under Roll no.
178627762009 and Enrollment no. 13572.
It is his case that he was declared ''Failed'
in two papers, to wit, Conservative
Dentistry and Endodontics (Paper-4) and
Prosthodontics and Crown & Bridge
(Paper-7). The petitioner says that he
wanted a re-evaluation of his marks
obtained in each of these papers because
''he believes that his answer scripts were
not properly evaluated' to borrow the words
of the petitioner's assertion in paragraph
no.7 of the writ petition.

2. It is also pleaded by him that
looking to his past academic record, he
expected much higher marks than those
that have been awarded. He has also
asserted in paragraph no.8 that he has
secured copies of the scripts relating to the
two papers in question and found the
answers not to be correctly evaluated by the
Examiners. He has pleaded in paragraph
no.12, the details of the errors, that are
subject matter of action here. It is pointed
out that the petitioner applied for an online
re-evaluation of the two papers, paying the
requisite fee. After re-evaluation, there was
a result of ''No Change' in both the papers.
The
petitioner
thereupon
moved
an
application to the Vice Chancellor and the
Registrar of the Dr. Bhimrao Ambedkar
University, Agra, seeking redress against
the improperly done re-evaluation. No
action being taken by the Vice Chancellor
or the Registrar of the University, the
petitioner has instituted this writ petition.
He
has
prayed
that
a
mandamus
commanding the respondent University and
the Vice Chancellor be issued to cause reevaluation of the petitioner's answer book
in the subject papers of Conservative
Dentistry and Endodontics (Paper-4) and
Prosthodontics and Crown & Bridge
(Paper-7) of the B.D.S. Fourth Professional
Examination, with a further direction that
he be caused to be given correct marks
after re-evaluation, within a period of time
to be specified by this Court.

3. Heard Mr. Anirudh Kumar
Upadhyay,
learned
Counsel
for
the
334 INDIAN LAW REPORTS ALLAHABAD SERIES
petitioner, Mr. Gagan Mehta, learned
Counsel appearing on behalf of respondent
nos.2, 3 and 4 and Mr. Sriprakash Singh,
learned Standing Counsel appearing on
behalf of respondent no.1.

4. Mr. Anirudh Kumar Upadhyay,
learned Counsel for the petitioner submits
that it is a case of inaction on the
University's part, who are a statutory body.
It is their duty to see that re-evaluation
once undertaken, ought to be a bona fide
exercise and not merely an eyewash. He
urges that the original award as well as the
result of re-evaluation, are both vitiated on
account of grave irregularities committed
by the two sets of Examiners. The
petitioner has pleaded that he has correctly
solved question no.2(a) and 3(d) in the
paper relating to Prosthodontics and Crown
& Bridge (B) part 2 (Paper no.7). The
Examiners in both instances have not
awarded correct marks. It is likewise
argued that the question paper in the
subject of Conservative Dentistry and
Endodontics (Paper no.4) carries question
no.1, which has two parts and question
no.3, both of which have been correctly
answered by the petitioner. He has also
answered question no.5 correctly. It is
pleaded and argued that question nos.(I)
(both parts), 3 and 5 have not led to any
marks being awarded by the Examiners in
error.

5. Mr. Gagan Mehta, learned Counsel
appearing for the University, on the other
hand, submits that re-evaluation has been
undertaken once and that has led to no
change. This Court cannot convert itself
into an expert to sit over the judgment of
the Examiners, which is expressed in their
award. He also submits that there cannot be
a second re-evaluation, which is not
contemplated under the Rules or the
Regulations applicable. Mr. Gagan Mehta
has, particularly, placed reliance on the
decision of the Supreme Court in Ran
Vijay Singh and others vs. State of Uttar
Pradesh and others, (2018) 2 SCC 357.
He has drawn the Court's attention to the
following observations of their Lordships
of the Supreme Court in Ran Vijay Singh
(supra):

"30. The law on the subject is
therefore, quite clear and we only propose
to highlight a few significant conclusions.
They are:

30.1. 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;

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;

30.3. The court should not at all
re-evaluate or scrutinise the answer sheets
of a candidate--it has no expertise in the
matter and academic matters are best left
to academics;

30.4. The court should presume
the correctness of the key answers and
proceed on that assumption; and

30.5. In the event of a doubt, the
benefit should go to the examination
authority rather than to the candidate.

31. On our part we may add that
sympathy or compassion does not play any
role in the matter of directing or not
1 All. Vishal Vaibhav Vs. State of U.P. & Ors.
335
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.

32. 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."

6. This Court has carefully considered
the matter in hand. The petitioner's
grievance has already been placed in a
second instance before the Examiners, who
have done a re-evaluation. They have not
disturbed the award made in the first
instance. Now, the petitioner asks for a
further re-evaluation. What he seeks is
virtually a second re-evaluation.

7. Learned Counsel for the petitioner
has not brought to this Court's attention
any regulation that may permit a second
re-evaluation. That apart, re-evaluation
once done, ought to bring the grievance to
an end. No candidate can claim the right to
a successive re-evaluation until some
Examiner is persuaded to agree with the
Examinee about the assessment of his own
merit. This matter relates to assessment of
a paper relating to a specialized branch of
medicine. This Court has no means to
ascertain nor the requisite expertise to
determine if the petitioner is right or the
Examiners are wrong. In a situation like
this, the Examination Authority is to be
trusted for their conclusions. It would be
unwise for this Court to convert itself into
an expert and set about the task of
reopening an Examiner's award twice
done.
336 INDIAN LAW REPORTS ALLAHABAD SERIES

8. In the result, this writ petition fails
and is dismissed. There shall be no order as
to costs.
----------
(2021)01ILR A336
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 19.01.2021

BEFORE

THE HON'BLE VIRENDRA KUMAR
SRIVASTAVA, J.

Criminal Appeal No. 181 of 1996

Kamlesh ...Appellant
Versus
State of U.P. ...Respondent

Counsel for the Appellant:
Alok Kapoor, (Amicus Curiae), Indrajeet
Shukla, Mohammad Mustafa Khan, Mohd.
Shafiq

Counsel for the Respondent:
Govt. Advocate

A. Criminal Law - Indian Penal Code -
Section 392 & 397 - Robbery at Petrol
pump - Attempt to cause death or
grievous hurt - Test Identification Pared
(T.I.P.) - Accused not named in F.I.R. -
No
recovery
of
looted
property
-
Accused not known to the prosecution
witnesses - Cashier, Manager and Truck
Driver, who chased the accused, were
not produced as witness, though they
are important - None of the prosecution
witnesses has stated that he had seen
any
special
characteristics
or
appearance of any accused or any
identification marks of their faces -
Appellant is already acquitted under
Arms Act - T.I. Pared delayed by 15 days
- No explanation thereof - Held, the
prosecution has miserably
failed to
prove its case beyond reasonable doubt,
the appellant is entitled to be acquitted.
(Para 31, 33, 34, 36 and 37)
B. Evidence Law - Evidence Act, 1872 -
Section 9 - Test Identification Pared
(T.I.P.) - Object and evidentiary value -
Corroboratory value - Object of TIP is to
find out whether the suspected offender
arrested by police during investigation is
real culprit or not - Evidence of TIP can be
held as reliable and trustworthy only
where the suspects were neither shown to
the witnesses nor the witnesses had an
opportunity to see them prior to TIP and
the proceeding of TIP is not irregular -
Evidence of TIP is very weak evidence, it
has only the corroboratory value and
where the offenders were unknown to the
witnesses and the prosecution case is
based
only
on
the
evidence
of
identification, prosecution has to prove
that prosecution witnesses had proper
and sufficient opportunity to see and
identify the respondents and they had
properly seen and identified them. (Para
26 and 28)
Appeal allowed. (E-1)
Cases relied on :-
1. Wakil Singh Vs St. of Bihar, AIR. 1981
S.C.1392
2. Shaikh Umar Shaikh & anr. Vs St. of Mah.,
1998 SCC (Crl.) 1276
3. Mohd. Sajjad @ Raju @ Salim Vs St. of W.B.
AIR 2017 SC 642
4. Lal Singh & ors. Vs St. of U.P., (2003) 12 SCC
554
5. Subash and Shiv Shankar Vs St. of U.P.,
(1987) 3 SCC 331
6. Musheer Khan @ Badshah Khan & anr. Vs St.
of M.P., (2010) 2 SCC 748

(Delivered by Hon'ble Virendra Kumar
Srivastava, J.)

1. The instant criminal appeal, under
Section 374 (2) of Code of Criminal
Procedure, 1973 (hereinafter referred to as
'Code'), has been preferred against the