The importance of refraining from re-evaluating answer scripts and impinging on an academic evaluator's jurisdiction in the context of judicial review.

JUDGMENT

Sanjeev Narula, J. - C.M. APPL. 14690/2021 in Rev. P. No. 79/2021 in LPA No. 124/2019 (for condonation of delay in filing the review petition)

1. For the grounds and reasons stated therein, the application is allowed and delay of 2 days in filing of the review petition is condoned.

2. Accordingly, the application stands disposed of.

Rev. P. No. 72/2021 in LPA No. 123/2019 & Rev. P. No. 79/2021 in LPA No. 124/2019

3. Mr. Narender Kumar and Mr. Neeraj Kumar Sangwan [hereinafter collectively, 'Review Petitioners/ Applicants'] seek review of common judgement dated 16th February, 2021 [hereinafter, 'impugned judgement'] whereby the appeals preferred by Respondent- District and Sessions Judge, were allowed and order of learned Single Judge dated 16th January, 20191 In W.P. (C) Nos. 3245/2012 and 3253/2012. re-evaluating Review Petitioners' typing sheets in examination for Lower Division Clerk ['LDC'], was set aside. Since the grounds of review are nearly identical, the petitions are being disposed of by way of this common order.

4. Mr. Pawan R. Upadhyay, counsel for Mr. Narender Kumar, and Mr. Ankur Chibber, counsel for Mr. Neeraj Kumar Sangwan, make following submissions:

4.1 There is error apparent on the face of record in the impugned judgement as the Court wrongly proceeded on the assumption that Review Petitioners were seeking re-evaluation; whereas, they were only requesting for re-calculation of marks, which is legally permissible for the Court to direct.

4.2 Correction of errors in calculating marks awarded for undisputed mistakes falls within the ambit of judicial review as has been held by the Supreme Court in Ran Vijay Singh v. State of U.P. (2018) 2 SCC 357.

4.3 Although the scope of judicial review may not permit the Court to assume the role of an examiner and substitute its own views and rationale with that of examiner, an exception is carved out in the case of re-totalling of marks. Cases at hand are not of re-evaluation of typing sheets of Review Petitioners requiring an inferential process of reasoning, but merely of re-checking or re-calculation of marks awarded.

4.4 Learned Single Judge vide order dated 16th January, 2019 had merely evaluated the method of calculation of marks awarded to Review Petitioners and did not engage in re-assessment of the typing sheets or mistakes committed therein. There was no digression of the bounds of judicial review by encroaching upon the exclusive domain of expert examiner, as observed in the impugned order. Only objective rules of examination were applied in assessing whether Review Petitioners have qualified LDC examination, as opposed to subjective evaluation in Central Board of Secondary Education v. Khushboo Srivastava and Ors. (2014) 14 SCC 523. as well as H.P. Public Service Commission v. Mukesh Kumar Thakur. (2010) 6 SCC 759

5. The principal contention for seeking review of impugned judgement is that the Court has lost sight of the fact that learned Single Judge did not indulge in re-evaluation of marks of Review Petitioners, but merely corrected the error committed by Respondents in calculation of marks. At the outset, it needs to be emphasised that aforesaid ground was not urged before this Court during hearing of the appeals. Mr. Chibber, who was not the arguing counsel when appeals were heard, is unable to assert to the contrary. It is settled law that a review applicant cannot re-argue their case under the guise of seeking a review. See: SEPCO Electric Power Construction Corporation v. Power MECH Projects Ltd, (2021) 10 SCC 792. Thus, Review Petitioners cannot be permitted to assail impugned judgement on grounds that were previously in their knowledge, but not urged. Unless the conditions mentioned in Order XLVII Rule 1 of the Code of Civil Procedure, 1908 are demonstrated, the Court cannot review its order.

6. Be that as it may, we have nevertheless considered the merits of the arguments advanced by both counsel on the above issue. Review Petitioners rely on copies of