The order of deposit for production of answer scripts is not a payment to the Council and hence does not give rise to a vested right in its favor. The principle of res judicata is inapplicable to such orders.

K.J. Sengupta, J.

1. The Hon'ble Chief Justice has constituted this Bench in view of the difference of opinion having been recorded by the Division Bench presided over by the Hon'ble Justice Ashim Kumar Banerjee and the Hon'ble Justice Tapas Kumar Giri in judgment dated 4th April, 2008 in F. M. A. 718 of 2007 (hereinafter referred to as the second judgment), while noting judgment dated 21st February, 2008 of another Division Bench rendered in F.M.A. 27 of 2007 (hereinafter the "first judgment") on the same subject.

2. The West Bengal Council of Higher Secondary Education (hereinafter Council) preferred appeal against the order of the learned Single Judge who has passed an order for appropriation of only half the amount of deposit made at the time of admission of the writ petition. In the connected writ petition the learned trial Judge directed refund of 50% of the amount to the writ Petitioner/Respondent and permitted the Appellant to appropriate the balance. Their Lordships while rendering the second judgment could not agree to the views expressed by Their Lordships in the first judgment that the candidate should not be asked to make pre-trial deposit more than Rs. 500/- per answer script for production of the same before the Court. It is observed by the Division Bench in the first judgment further that order of retention of Rs. 500/- per script out of the total deposit is more than adequate compensation. In the second judgment the Division Bench while disagreeing with this view has opined that it should not be proper to have a generalized ceiling of deposit in all the cases of this nature. It is to be noted that while referring the matter, no specific question has been formulated for inviting answer by this Bench.

3. While appearing for the Appellant Mr. Lakshmi Kumar Gupta, Senior Advocate fairly concedes that in strict sense it is not a reference which calls for the answer on question of law, but having regard to the language mentioned in Rule 1 of Clause (ii) Chapter II of the Appellate side Rules, decision may be rendered by the larger Bench on any other matter. The said provision is reproduced hereunder:

Provided also that, on the requisition of any Division Bench, or whenever he thinks fit, the Chief Justice may appoint a special Division Bench, to consist of three or more Judges, for the hearing of any particular appeal, or any particular question of law arising in an appeal, or of any other matter.

This Court can decide the matter in general, if necessary formulating the questions or otherwise. We have gone through the two judgments and having understood the dissenting note in the second judgment, we are of the view that the present reference has given rise to the following question:

(i) Wherever the Court directs production of answer scripts of examinees taking public examinations for verification, whether the view of the former Division Bench that "it is only proper that terms to be dictated as a pre-condition for production of answer scripts should not exceed a deposit of Rs. 500/- per script" is correct?

4. Having heard the learned Counsel in the matter and having gone through the two judgments of this Court which on the above point, are conflicting with one another, it appears the other issues focussed before us and to be answered are as under:

ii. Whether the order of deposit creates any right in favour of the Council to claim to retain it altogether?

iii. If not, then whether Court has got power to pass at the time of final hearing the order of appropriation of costs from and out of the amount deposited pursuant to the earlier order?

5. It is found more often than not that the unsuccessful candidates approach this Court in the extraordinary jurisdiction under Article 226 of the Constitution of India challenging the evaluation of the answer scripts done by the Council. It is appropriate to mention in the relevant Act or regulation framed thereunder there is no provision for scrutiny of the answer script after the