IMPORTANT POINT
High Court in exercise of its power under Article 226 of the Constitution can not substitute its own evaluation of the answers of a candidate for that of the examiner.

ORDER

A. K. Patnaik, J. —

Leave granted.

2. This is an appeal against the judgment dated 06.02.2009 of the Division Bench of the Patna High Court in Letters Patent Appeal No.984 of 2008 (for short ‘the LPA’).

3. The facts very briefly are that the respondent No.1 appeared in the All India Pre-Medical/Pre-Dental Entrance Examination, 2007 conducted by the Central Board of Secondary Education (for short ‘the CBSE’). She submitted a representation dated 07.06.2007 through her advocate to the CBSE for re-examination and re-totalling of her marks in Physics, Chemistry and Biology. The CBSE informed the advocate of respondent No.1 by letter dated 02.07.2007 that there was no provision for re-checking/re-evaluation of answer sheets of the candidates. Aggrieved, the respondent No.1 and others filed writ petition, C.W.J.C. No.7631 of 2007, in the Patna High Court under Article 226 of the Constitution for directing the CBSE to conduct a re-evaluation of her answer sheets and to re-total the marks and publish the result. The CBSE filed a reply contending inter alia that under the examination bye-laws pertaining to the All India Pre-Medical/Pre-Dental Entrance Examination, there was no provision for re-evaluation. The learned Single Judge of the Patna High Court, who heard the writ petition, passed orders directing the CBSE to produce the answer sheets of respondent No.1 on the condition that respondent No.1 would deposit Rs.25,000/- to prove her bonafide that her answer sheets were wrongly evaluated. The respondent No.1 deposited the amount of Rs.25,000/- and her answer sheets relating to Physics, Chemistry and Biology as well as the model answers were produced by the CBSE before the High Court. The learned Single Judge compared the answers of the respondent no.1 with the model answers and held in his order dated 20.10.2008 that the answers of respondent No.1 to question No.3(e) in the Botany paper and question No.20(a)-iii in Chemistry were correct but she was not given marks for her answers to the two questions. The learned Single Judge was of the view that if the answer sheets of respondent No.1 were correctly evaluated she would have got two more marks. The learned Single Judge, however, held that the seats for the Pre-Medical Course on the basis of the All India Pre-Medical/Pre-Dental Entrance Examination, 2007 were already allotted to the successful candidates and the successful candidates had completed one year study and there was no interim order reserving any seat for respondent No.1 and therefore no relief could be granted to the respondent No.1 except directing refund of the amount of Rs.25,000/- deposited by her.

4. The respondent No.1 then filed the LPA before the Division Bench of the Patna High Court and contended that the learned Single Judge after having held that she was entitled to two more marks and also to admission in the MBBS Course should have directed the appellants to admit the respondent No.1 in the next academic session. The appellants, on the other hand, submitted opinions dated 10.02.2008 and 15.02.2008 of two experts which had not been placed before the learned Single Judge and contended that the findings of the learned Single Judge are not correct. The Division Bench of the High Court considered the opinions of the two experts and yet concurred with the findings of the learned Single Judge that two of the answers of respondent No.1 had not been correctly evaluated and that she was entitled to two more marks. The Division Bench of the High Court took note of the fact that respondent No.1 had approached the Court within eight days of the publication of the result and held that she was not to be blamed for the delay in disposing of the writ petition and hence relief should not be denied to the respondent No.1 only on the ground of lapse time. The Division Bench of the High Court therefore moulded the relief and directed that respondent No.1 be admitted in the MBBS Course in the next academic session 2009-2010