SECRETARY ALL INDIA PRE MEDICAL Vs. KHUSHBOO SHRIVASTAVA

JUDGEMENT

(1.) 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-totaling 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 alias 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.