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Sheodhari Prasad Sah vs State Of Bihar And Ors. on 27 September, 1989

Patna High Court
Sheodhari Prasad Sah vs State Of Bihar And Ors. on 27 September, 1989
Equivalent citations: AIR 1990 Pat 196, 1990 (38) BLJR 277
Author: B K Roy
Bench: B K Roy


ORDER

Binod Kumar Roy, J.

1. This writ application was filed on 13th February, 1989 by the petitioner praying to issue a writ in the nature of Mandamus directing the respondents to revaluate the marks obtained by him in the subject ‘General Knowledge’ of 1985 Examination conducted by the Bihar State Subordinate Service Selection Board.

2. This writ application was put up for its admission on 27-2-1989 and on that day the case was adjourned to enable the learned counsel for the State to obtain the answer book of the petitioner as also the question paper of the subject of General Knowledge and to produce them before this Court. The writ application, thereafter, was listed again for its admission on 4th April, 1989 and it appears that a prayer for time was made on behalf of the State and by way of last indulgence, this case was directed to be put up after two weeks. The writ application thereafter was listed for its admission again on 2-5-1989. On that day learned counsel for the State prayed for one more indulgence on which the following order was passed :

“Although more than one adjournments had been granted to enable the respondents to produce the answer book of the petitioner of the subject of General Knowledge, the same has not been produced.

Learned counsel for the State prays for one more indulgence.

Put up after one week, as prayed for.

It is made clear that if answer book of the petitioner, as indicated above, is not produced within the said time adverse inference shall be drawn.”

 On 24-5-1989, the respondents again failed to produce the answer book    and even the

question paper of the subject of General Knowledge and the writ application was admitted and it was directed to be listed for hearing in the 2nd week of September, 1989. 
 

 3. The other facts, which arc apparent from the writ application as also the supplementary affidavit filed on behalf of the petitioner, are as follows: 

The subject General Knowledge was made a compulsory subject for the said examination. The petitioner who belongs to backward community of society and eligible submitted his application and appeared in the said examination but the result published on 11-2-1988 did not show his name in the list of successful candidates. The petitioner applied for marks. A mark sheet (a copy of which has been appended as Annexure-3 to the writ application) as supplied showing that the petitioner secured 56 marks in General Hindi, 50 marks in two optional papers each but only 16 marks in General Knowledge. The petitioner claims that in the earlier examination of 1982 he had secured 153 marks out of 300 but as candidates securing upto 154 marks were selected, he unfortunately was not selected as he secured only one mark less. The petitioner sought revaluation of his answer book of General Knowledge as he was confident of obtaining more than 60% marks in the subject but no relief having been granted by the respondents, he chose to move this Court.

4. A counter affidavit has been filed in which it has been asserted, inter alia, that there is no provision for revaluation of the answer books, even though an attempt was made to search out the answer book of the petitioner it could not be traced out.

5. Mr. Ram Bilas Roy ‘Raman’ learned counsel for the petitioner, submits that this Court has got ample jurisdiction to direct the respondents to produce the concerned answer book of the petitioner and to find out as to whether marks were correctly given and that as despite repeated opportunities being given to the respondents they had failed to produce thc answer book, this court should draw an

adverse inference against them and should presume in favour of the petitioner that the answer given by him were sufficient to fetch him 60% marks. Learned counsel also placed reliance on a Division Bench Judgment of the Madhya Pradesh High Court in Ku. Rashmi Bala Saxena v. Jiwaji University, Gwalior reported in AIR 1989 Madh Pra 181, for a proposition that in view of the fact that the answer book of the petitioner having been presumably lost or not having being deliberately produced before this Court it would be in the interest of justice that this Court may issue a direction to the respondents to give an average marking in the subject General knowledge on the basis of the result obtained by the petitioner in other subjects.

6. Mr. S. N. Jha, learned counsel for the respondents initially tried to support the stand taken by the respondents in the counter affidavit that there being no provision for revaluation of the answer book, the petitioner is not entitled to that relief but latcron in view of the non-traccability of the copy of the General knowledge of the petitioner suggested that this court may issue any appropriate direction to the respondents.

7. From perusal of the judgment of the Madhya Pradesh High Court supra, it appears that there is an Ordinance containing a provision to decide cases of such candidates whose answer books are lost in transit and in that backdrop it was held that average marks should be given to those candidates whose answer books are lost.

8. In this case there is no such provision. The question is what should be the course followed here. There are well-known legal maxims “Actus curiac nemincm gravabit”, which means the act of court hurts no one and “Actus legis neminiest dornnosus”, which means an act in law shall prejudice no man. There is yet another legal maxim “No man can take advantage of his own wrong”. This maxim in re London Celluloid Company, (1888) 39 Ch D 190 at p. 206 has been interpreted to mean “that a man cannot enforce against another a right arising from his own breach of contract or breach of duty”.

The petitioner admittedly had a right of recalculation of the marks obtained by him. A person can well invoke the jurisdiction of this Court to get his answer book revaluated provided he makes out a genuine grievance in that regard and adduces satisfactory material. I am of the view that the petitioner has made out such a case for revaluation of his answer book which the Respondents are unable to produce and even in invoking the 3rd legal maxim referred to in the said Chancery Division case. Thus it was in the interest of justice for the Respondents to follow the same course as indicated by the Madhya Pradesh High Court or to take up a fresh examination in the subject if answer book of a candidate is lost. The petitioner cannot be allowed to suffer due to the mistake of the Respondents in not preserving the copy of the General knowledge. Accordingly, I direct the Respondents either to grant average marks to the petitioner in the subject of General knowledge on the basis of marks already obtained by him in other subjects or to take up his fresh examination in the same subject within sixty days from today. If the Respondents, however, decide to take up a fresh examination, they must communicate to the petitioner within thirty days from today of their decision.

9. In the result, the writ application is allowed with the aforementioned directions with cost. Hearing fee Rs. 250/- only.

10. Let a writ in the nature of mandamus issue accordingly.

11. Let a copy of this judgment be also handed over to the learned standing Counsel II for its immediate communication to the Respondents.

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