JUDGMENT
1. Heard Mr. Vashi.
2. Two-fold contentions has been raised
by Mr. Vashi — (i) that once the suit has been
filed by the Plaintiff student challenging the
evaluation of the answer-book, the court had
ample power under Order 26 of the Code of
Civil Procedure for appointment of commis
sioner and inspection of answer-books by the
Plaintiff and in the alternative fay the court;
(ii) that once the answer-books have been
examined, evaluated and assessed by the
board examinee is entitled to return of the
answer-books because he is author of that
answer-book and also owner thereof and,
therefore, the refusal to grant ad interim-relief
by the trial court pending notice of motion
was not justified.
3. Though the arguments on its face appear to be attractive but oh close scrutiny, none of the two arguments has any substance and merit.
4. Rules 102 104 of the Maharashtra State Higher Secondary Board/Regulations 1977 came up for consideration before the Apex Court in Maharashtra State Board of Secondary and Higher Secondary Education v. Paritosh Bhupesh Kurmarsheth, Apex Court in para-12 of the said judgment held thus-
“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 dear 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 cl. (3) of Regn. 104 does not attract the principles of natural justice since no decision making process which brings about adverse evil 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 necesssary that candidates who have taken a public examination should be allowed to participate in the process of evaluation of their performances or to 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 succintly put by Mathey, J. in his judgment in the Union of India v. ML. Cooper, , “it is not expedient to extend the horizon of natural justice involved in the audi alteram pariem rule to the twilight zone of mere expectations, however great they might be”. The challenge levelled against the validity of cl. (3) of Regn. 104 based on the plea of violation of natural justice was,
therefore, rightly rejected by the High Court.”
5. The Apex Court has made it clear that candidates or examinees cannot be allowed to participate in the process of evaluation of their performances or to verify the correctness of evaluation made by the examiners by themselves conducting inspection of the answerbooks and to determine whether there has been a proper and fair valuation of answers by the examiners. That being the law laid down by Apex Court, the verification of the correctness of the evaluation by the examinees which is not prmissible directly cannot be allowed to be done indirectly by appointment of commissioner and allowing the litigant to inspect the answer books in the garb of inspection of the subject matter of the litigation. It would be pertinent to note that
Order 26, Rule 1 to 8 of the Code of Civil Procedure Code deals with the commissions to examine witnesses. Apparently the aforesaid provisions have no application. Rule 9 and Rule 10 deal with the commissions for local investigations. Under Rule 9, for elucidating any matter in dispute or for ascertaining the market value of any property or the amount of any mesne profit or damages or annual net profit, the court is empowered to issue commissioner for local investigation. Obviously the appointment of commission for the verification or evaluation of answer-book is not covered under Rule 9 of Order 26. Rule 10 only deals with the procedure of commissioner. Rule 10A, Rule 10B and IOC of Order 26 deals with ihe commisison for scientifical investigation, purpose of municipal act and as well of immovable property and the said rules, therefore, have no application for the present purposes. Similarly, commissions to examine accounts are covered under Rule 11 and Rule 12 which is not the subject-matter in the present cast. Rule 13 and Rule 14 of Order 26 deals with commission to make partition anil that too has no application. In this view of the matter, the contention of the learned counsel for the Plaintiff/Appellant that once the suit was filed and subject-matter relating to verification and evaluation of answer-books of Plaintiff was involved and, therefore, commissioner ought to have been appointed under Order 26 by the trial court is wholly misconceived.
6. Coming to the second contention raised by Mr. Vashi, learned counsel for the appellant that once the answer-books have been examined, asscsseed and evaluated; the examinee is entitled to return of the answer-book, it may be observed that on the face of the provision contained in sub-rule (3) of Regulation 104, the argument is fallacious and without any substance.
7. The relevant provisions of Regulation 104 read thus –
“Subject — no candidate shall claim or to be entitled to revaluation of his answers or disclosure or inspection of answer-books or other documents as these are treated by the
Divisional Board as most confidential.”
8. When the candidate cannot claim inspection of the answerbook or other documents and is also not entitled to revaluation of the answers or disclosures, the same being most confidential, obviously the candidate cannot claim the return of the answerbooks. If the answer-books are returned to the candidate the very purpose of confidentiality of the answerbooks shall be frustrated.
9. For the aforesaid reasons, the impugned order cannot be faulted and appeal is liable to be dismissed in limine and is dismissed accordingly.
Appeal dismissed.