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Judgment
S.B. Sinha, J.—These three review applications has been filed for review of our judgment dated 20.7.1002 passed in C.W.J.C. No. 5772 of 1992, C.W.J.C. No. 6824 of 1992 and C.W.J.C. No. 0704 of 1902. The aforementioned three writ applications were filed, inter alia, for issuance of a writ of certiorari for quashing the re-evaluated result of April, 1991 of A.N.M. Examination dated 19.06.1992 as contained in Annexure-5 to C.W.J.C. No. 5772 of 1992.
The fact of the matter as involved in Civil Review No. 83 of 1902 arising out of C.W.J.C. No. 5772 1992 is being considered.
Admittedly Bihar Nurses'' Registration Council, Patna (hereinafter called for the sake of bravity as ''the Council'') holds and conducts examination of Nursing. Such examinations are conducted in April and October each year. Examination was held in April, 1991, result whereof was to be published in July, 1991. At the relevant time one Smt. Champa Prasad was the Registrar of the Council but she was transferred as Principal of A.N.M. School, Dhanbad and one Smt. Snehlata Saran took over the charge of the Council (Respondent no. 2 in the writ application). Result was not published in July, 1001 and in October, 1991, the Council was re-constituted. Some irregularities were found in the said examination by the State Government and upon inquiry held in this regard, the Executive Sub-Committee of the Council decided to re-evaluate the answer books of April, 1991 Nursing examination. The said decision dated 18.2.1992 is contained in Annexure-3 to the writ application. Allegedly the result was published on 19.6.1992 and out of 749 candidates 285 were declared pass and rest 404 candidates were declared either to have failed or their results were held up. A copy of the said result dated 19.06.1992 is contained in Annexure-5 to the writ application. It was contended on behalf of the writ petitioners that some malpractices have been made by Respondent no. 3, her husband, Sri Upendra Prasad Yadav, and Respondent nos. 4 & 5, who were appointed as Tabulator.
In the writ application, counter affidavit was filed on behalf of Respondent nos. 1 & 2. The said counter affidavit was sworn by Smt. Snehlata Saran, respondent no. 2 in the aforementioned case herself. In that counter affidavit it was contended that the examination Sub-Committee was constituted by the Council which functioned as Unfair-means Committee of the Bihar School Examination Board and they have the power to re-evaluate the answer hooks in general before publishing the result.
this Court after hearing the counsels for the parties passed the following order :
Heard Learned Counsel for the petitioners and the Learned Counsel for Bihar Nurses'' Registration Council, Patna.
In this writ application, petitioners have sought for issuance of a writ of or in the nature of mandamus directing the Respondents to publish the results of the A.N.M. course held in the month of April, 1991.
The fact of the matter lies in a very narrow compass. Petitioners appeared in the aforementioned examination held in the month of April, 1991. The result thereof was to be published in July, 1991. However, before the result was to be published in the month of July, 1991, the then Registrar Smt. Champa Prasad was transferred, due to this reason the said result was not published in July, 1991. Thereafter, the Deputy Director of Health allegedly found certain irregularities in relation to 14 answer books. He after making certain enquiries ordered for the re-evaluation of all the answer books and results have been published thereafter.
Mr. Amar Nath Singh, Learned Counsel appearing on behalf of Respondent no. 6 has very fairly stated that there does not appear to be any cogent reason for re-evaluation of the answer books inasmuch as irregularities with regard to only 14 answer books were found.
In this view of the matter, we direct the Respondent no. 1 to publish the result of all the candidates on the basis of the examination held in April, 1991 as also the evaluation of the answer books made by Respondent no. 6 at that point of time. It would be open to Respondent no. 1 to pass suitable orders in accordance with law in relation to 14 answer hooks in respect whereof certain irregularities were found.
It is expected that the result shall be published as prayed for by Respondent no. 6 with ulmost expedition and preferably within one month from the date of receipt of the copy of this order.
This application is disposed of with the aforementioned directions.
From a perusal of the aforementioned order it is evident that this Court directed publication of result of the petitioners as it was conceded by the Learned Counsel appearing on behalf of the Council that irregularities have been found only with regard to 14 answer books. In the Civil Review application, however, it has been contended that the Learned Counsel appearing on behalf of the Council did not place the entire facts before this Court resulting in passing of the aforementioned order.
Mr. S.N. Roy, Learned Counsel appearing on behalf of Council has submitted that allegations were made about the commission of bungling in the matter of evaluation of the answer books. The answer books were kept under lock and key in Kurji Holy Family Hospital, Patna and thereafter a team of the Officers and employees were constituted and the lock of the room where the answer books were kept was broken in presence of the Administrator & Director of Holy Family Hospital, Kurji, Deputy Director, Health Services and the Registrar of the Council and others. It was found that the answer books have been kept in a very scattered state and the Council, therefore, directed the Registrar to take all the answer books in the office of the Council. A decision was later on taken to make an enquiry with regard to the irregularities committed and a Committee was constituted consisting of Dr. S.P. Singh, Deputy Director, Health Services, Registrar of the Council, Sri Panna Lal, Assistant, Sri Madan Lal Sahu, Head Clerk and Smt. Luci Jasinta Ekka, Clerk of the Council and the following irregularities were found :
(a) The first page of a large number of answer books on which roll number and marks were to be recorded have been changed.
(b) On the front page of several answer books where marks obtained by the candidates are entered there are cuttings and interpolations.
(c) Mere perusal of the tabulation register it transpires that marks have been added Alter recording the marks obtained by the candidates.
(d) The tabulation register do not bear the signature of the members and there is no mention of code number in the tabulation register.
(e) There are no signature of examiner in several answer books and in several answer books there are signature of two or three examiners.
(f) In several answer books the marks mentioned on the front page of the answer books do not tally with the internal marks obtained by the candidates question-wise.
(g) After going through the several answer books and the tabulation register the team submitted in its report finding large scale illegality and irregularities committed in the evaluation of answer books and also in the tabulation register that all the answer books should be reevaluated by a fresh batch of examiners and the examiners who evaluated the answer books earlier should not be made examiner again.
It has been contended that it is not a fact that irregularities were found in relation to 14 answer books but by way of specimen only 14 answer books were taken and the report was submitted, which was contained in Annexure-A to the counter affidavit. It was contended that the tabulation register even did not bear the signature. Before us the tabulation register before evaluation has been filet and from a perusal thereof it appears that no signature of either tabulator or any member thereof appeared therein.
It has been submitted that thereafter a resolution was adopted on 18th February 1992 by the Council for re-evaluation of the answer books and examiners were appointee and one Dr. Smt. Narayani Yadav was made Incharge for the purpose of re-evaluation of the answer books. A copy of the resolution dated 18th February, 1092 is contained in Annexure-B to the review application. It was however, reported by the aforementioned Dr Smt. Narayani Yadav that the work of evaluation has been completed but the tabulation work is yet to be completed and for Tabulators should be appointed and the Council appointed four Tabulators. It was further pointed out by Dr. Smt. Narayani Yadav the some answer books could not be traced an as such a decision was taken by the Evaluation Committee that the candidates should be give average marks. After preparation of the result the tabulation register was placed before the Council in its meeting dated 11th of May, 1992 and the same was directed to be published. The said resolution dated 11.5.1992 is contained in Annexure-D to the Civil Review application.
Mr. Roy has also placed before us the tabulation registers which have been prepared after re-evaluation.
From Annexure-A to the Review application, it appears that the following irregularities were found :
The first page of the answer books, on which roll number and list of marks obtained is mentioned, has been changed, which can be seen on the answer book of roll no. K.H.R. 231.
There are so many cuttings and addition-alteration marks obtained on the page of answer books. It can be seen in the answer books of roll numbers K.H.R. -239, Haj-307, Muz. 746, Madhu. 470, K.H.R. 241, G.-289.
From perusal of tabulation register, it appears that some addition have been made on marks obtained. Somewhere instead of ink, pencil has been used.
Signature of any Member has not been found in the tabulation register. Code number has not been mentioned in the tabulation register.
In various answer books, signature of examiner is not found and somewhere signature of two or three examiners are mentioned.
Marks noted on upper page of the answer books do not tally with the internal marks obtained by the candidates question wise. It was, therefore, recommended that all the answer books be re-evaluated.
Before us a comparative chart of the position of petitioners have been filed which reads thus :
Comparative Chart of the result prepared by Smt. Champa Prasad and after re-evaluation of 1991 (April) Examination 3rd Year (Final) General Nursing
Sl.
No.
Class No.
Opposite Party No.
Name
Roll No.
Result : Before Re-evaulation
Result After Re-evaulation
1
2
3
4
5
6
7
1.
Civil Review
No. 91/92
5
Indramani Kumari
Pat-l48
Pass C Grace
Fail
2.
do
4
Geeta Kumari Mishra
NMC-307
Column Kept blank
Fail
First Year General Nursing
1
2
3
4
5
6
7
3.
Civil Review No. 91/92
I
Hemanti Sagar
Pal-3
III Div.
Fail
4.
do
2
Renu Kumari
Pat-1
III Div.
Fail
5.
do
3
Prabila Devi
Pat-2
III Div.
Fail
6.
Civil Review
No. 96/92
5
Arti Kumari
NMC-17
III Div.
Fail
7.
Civil Review No. 96/92
1
Abha Kumari
KHR-266
II Div.
Fail
8.
Civil Review No. 96/92
2
Subhadra Kumari
KHR-223
II Div.
Fail
9.
do
3
Renu Kumari
KHR-255
Fail
Fail
10.
do
4
Manju Kumari
KHR-260
Fail
Fail
II.
Civil Review
No. 83/92
1
Binita Kumari
MUZ-749
Column Kept blank
Fail
12.
do
2
Laxmi Kumari
MUZ-702
Column Kept blank
Fail
13.
do
3
Prabila Kumari
Haz-307
Fail
R.C.
14.
do
4
Shyam Prabha Kumari
DG-353
Pass
Fail
It was, therefore, submitted that although these materials were available in the writ application, the same had not been properly placed before us, resulting in miscarriage of justice. Our pointed attention was drawn to the enquiry report which is part of Annexure-A to the counter affidavit; from a perusal whereof, it appears that various illegalities were found in evaluation of answer books as also in the procedures. It has further been pointed out that the Sub-Committee had found that interpolations had been made in the answer books and arbitrarily the marks obtained by the candidates had been increased after scoring out the original numbers. It was further pointed out that even the interportion of the answer books in many cases were found changed.
Mr. Roy, therefore, submitted that this is a fit case in which this Court should exercise its jurisdiction for review.
Mr. Vyas Muni Singh, Learned Counsel appearing on behalf of the Opposite parties, however, submitted that the action of the Council does not appear to be bonafide inasmuch as it had not taken any action against the erring Officers. It was further submitted that the review application are not maintainable and have been filed malafide as the writ petitioners had filed contempt application. It was submitted that as in the counter affidavit all material facts had been brought to the notice of the Court, no error apparent on the face of the records have been committed in passing the order dated 29.7.1992 passed in C.W.J.C. No. 5772 of 1992, C.W.J.C. No. 6824 of 1992 and C.W.J.C. No. 6764 of 1992 and consequently those review applications should be rejected.
There cannot be any doubt that a power of review has to be exercised sparingly and with due care and circumspection. Although in a proceeding under Article 226of the Constitution of India, the provisions of CPC are not applicable, the principles analogous to Order XLVII Rule 1of the CPC should not be normally invoked. It is true that an application for review should be entertained only if there is error apparent on the face of the record and thus additional materials should not normally be relied upon for the purpose of review of the order. It is further well known that a submission which is being canvassed for the first time should not be entertained although such submissions advanced represent one of the two views possible. However, it is also well known that this Court exercises its power of review also under Article 226of the Constitution of India while reviewing the order passed under the said provision. The advancement of cause of justice should, therefore, be upper-most in the mind of the court while exercising its jurisdiction under Article 226of the Constitution of India.
It is one of those cases, wherein an order had been passed which we regret to note on a wrong concession of the counsel appearing on behalf of the Council. this Court from a perusal of the orders under review evidently passed the same only upon the stand taken by Dr. Amar Nath Singh. It did not arrive at its own findings upon consideration of all the materials placed on records. It may be true that a mistake was committed by the Learned Counsel in making statement before us that irregularities have been found only in respect of 14 answer books, although the said 14 answer books had been referred to in the enquiry report only by way of example as gross cases. It is evident that the Council had reasons to direct re-evaluation of the answer books. At this stage we are not concerned as to whether the resolution adopted by the Council is legal or not but the fact remains that the Council adopted various resolutions as noticed hereinbefore to re-evaluate all the answer books and thus, the same were not confined to 14 answer books.
In this view of the matter, in our opinion, we should exercise our jurisdiction to review/recall our order in the interest of justice. The legality or otherwise of the order impugned in the writ application and the effect thereof will be considered by this Court on their own merits. For the reasons aforementioned, these applications are allowed and the order dated 29.7.1992 is recalled, C.W.J.C. No. 5772 of 1992, C.W.J.C. No. 6824 of 1992 and C.W.J.C. No. 6764 of 1992 now again be placed under the heading for admission before an appropriate Bench.
G.C. Bharuka, J.
I agree.