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TMI Blog2009 (2) TMI 933X X X X Extracts X X X X X X X X Extracts X X X X ..... d request was not acceded to she preferred the writ application. When the writ application was taken up on 24th of August, 2007 this Court directed her to deposit a sum of Rs. 25,000/- (twenty five thousand) and while doing so it was observed that in the event it transpires that her paper was correctly evaluated, the amount deposited by her shall be treated as cost and be paid to the CBSE. It was further observed that on receipt of the amount the CBSE shall produce her answer sheets. She deposited the amount and her answer sheets were produced. The learned Single Judge on consideration of the materials placed before it came to the conclusion that her answer sheets were not correctly evaluated and she was entitled for two more marks. Finding of the learned Single Judge in this regard, reads as follows: After thorough perusal of the answer sheets and model answers the result of the petitioner after scrutiny as per information of the petitioner No. 1 has been placed before this Court through the supplementary affidavit which contains comparative chart of model answers given by petitioner No. 1 with reference to certain questions in the papers of Botany, Zoology and Chemistry. This c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... BS Course. 5. Mr. Binay Krishan Tirpathy appearing on behalf of the respondent Nos. 3 to 5 had gone into the root of the matter and assailed the findings of the learned Single Judge that the petitioner was entitled for two more marks. He submits that this Court, in the face of the regulation of the C.B.S.E. prohibiting revaluation exceeded in its jurisdiction in evaluating her marks and coming to the finding that she was entitled for two more marks. He points out that in sum and substance this Court had evaluated the answer sheets which is not permissible in law. In support of his submission, he has placed reliance on a Division Bench judgment of this Court in the case of Ganesh Prasad Yadav and Ors. v. The State of Bihar and Ors. and analogous cases reported in 1995 (2) PLJR 170 and our attention has been drawn to paragraph 36 of the judgment which reads as follows: No doubt, there are mistakes in the alternative answers or responses to the four questions, but on that Basis it cannot be said that the Commission adopted any unfair means or acted in an unfair manner, on the other hand, the aforesaid mistakes appear to have been committed by the experts to whom the work of setting ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rerogative writ to the superior courts is given to advance justice and this Court cannot shut its eyes when glaring mistake is pointed out. Here, in the present case, as observed earlier while directing for production of the answer sheets the learned Single Jude had put the petitioner to terms, she was required to deposit a sum of Rs. 25,000/- (twenty five thousand) and only thereafter, the learned Single Judge directed for production of the answer sheets. This Court came to the conclusion that the petitioner was entitled for two more marks. This exercise has been done by this Court in exercise of its high prerogative writ and rules framed by the C.B.S.E. would not preclude this Court from exercising this power. It is hallowed by time and sanctified by precedent that power of this Court under Article 226 and 227 of the Constitution cannot be curtailed by any rules or regulations. 8. In view of what we have observed, the decision of this Court in the case of Ganesh Prasad Yadav (Supra) and of the Supreme Court in the case of Pramod Kumar Srivastava (Supra) shall have no bearing in the facts of the present case. In those cases, the issue was not the jurisdiction of this Court to re- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... any and question No. 20(a)(iii) in Chemistry. Question No. 3(e) reads as follows: Write the type of inflorescence, Placentation and fruit in each of the following. (e) Wheat In the model answer of the C.B.S.E following answer has been indicated and petitioner's answers have been indicated in the right side: Question - Model Answer - Answer of Petitioner Inflorescence - Spike of Spikelets - Compound spike Placentation - Basal - Basal Fruit - Caryopsis - Caryopsis 12. The opinion of the retired Reader in the department of Zoology is as follows: Q. No. 3 (e) - The appropriate answer to the type of inflorescence in wheat is only "Spike of Spikelets". This is the standard Taxonomic term. The other Term "compound spike" is being loosely used in several books. 13. As regards question No. 20(a)(iii), the opinion of the Professor is as follows: Q. No. 20(a)III: The answer written by the candidate shows that he/she lacks the complete understanding of the subject. Let the following be understood in this connection: (i) The presence of asymmetric carbon is not the 100% surety for the optical activity of a compound. (ii) There could exist optically active com ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case of The Bihar Combined Entrance Co v. Vishakha Gupta reported in 2008 (1) PLJR 847 directed as follows: In the circumstances, in our opinion, it will be just and proper to direct the respondents-appellants to grant admission of the writ petitioner-respondent, to the MBBS for the Session 2007-08, if necessary, by raising an additional seat for her. This is necessary because the respondents have admitted next candidate in order of merit to MBBS course, but since she has not been impleaded and has already gone some length in course, it will be unjust to dislodge her without hearing her. Moreover, it is not a case in which any irregularity of general Rules has taken place affecting a large number of candidates but is in the nature of one isolated case. 19. Such a direction has been given by the Supreme Court in the case of Aman Deep Jaswal v. State of Punjab and Ors. reported in (2006) SCC 597 which would be evident from paragraph 4 of the judgment. On these peculiar facts, we are of the view that the appellant Aman Deep Jaswal is entitled to be admitted in MD Anaesthesia in Government Medical College, Patiala in the next academic year 2006-07 within the sanctioned intake of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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