S.B. SINHA, J.

(1) PRIMARY education to be imparted to the children upto the age of 14 years has been held to be the fundamental right in Unni Krishnan Vs. State of Andhra Pradesh reported in (1993)1 SCC 645 [LQ/SC/1992/11] .

(2) THE question, which, however, arises for consideration in this application primarily, is as to the parameters of the judicial review in the matter of implementation of the National education Policy. Do the Courts up law have any say as regard the Syllabus, setting out the question papers, the marking scheme, the mode and manner of evaluation of the answer scripts and the right of the students and / or their parents to have access to the answer sheets are some of the questions involved in this writ petition.

(3) MR. P. S. Sharda, the learned counsel appearing on behalf of the petitioner, with his usual emphasis took us not only through the sayings on education by Mahatama Gandhi, dr. S. Radhakrishnan, Dr. Radha Kumud Mukherjee, Shri Sachidanand Sinha and Dr. B. R. Ambedkar, but also to the National Policy of Education, 1966 as amended in the year 1992 stressing that the Court had the requisite jurisdiction to issue an appropriate direction in this regard.

(4) WE have been taken through various decisions of the Apex Court, wherein emphasis has been laid on laying down of the Syllabus, setting of question papers and proper evaluation thereof, viz. State of Madhya Pradesh Vs. R. R. P. Agarwal and Ors. (1979) 4 SCC 686 [LQ/SC/1979/106] ; Kanpur University Vs. Samir Gupta, AIR 1983 SC 1230 [LQ/SC/1983/265] ; Mohini Jain Vs. State of karnataka, AIR 1992 SC 1858 [LQ/SC/1992/468] ; Unnikrishnan Vs. State of Andhra Pradesh, (1993) 1 SCC 645 [LQ/SC/1993/103] ; and Maneka Gandhi Vs. Union of India, AIR 1978 SC 597 [LQ/SC/1978/27] .

(5) MR. Anil Kumar, the learned counsel appearing on behalf of the respondent, on the other hand, submitted that the first petitioner herein had filed several writ petitions raising the very same issues before this Court as also the Supreme Court of India, which have been answered and thus this writ petition is barred under the principles of res judicata. The learned counsel further contended that this Court as also the Supreme Court of India in various decisions had the occasion to consider the matter and thus the petitioner should not be permitted to rake up the same issues over and over again.

(6) KEEPING in view the aforementioned principles, the questions involved herein are required to be determined. OVER VIEW OF THE PREVIOUS LITIGATIONS:-The petitioners filed a writ petition before this Court, which was marked as CWP No. 3738 of 1993, inter alia praying as under :-

"to issue a writ of Certiorari or any other appropriate writ, order or direction quashing regulations 10 (iii) (3) (k) of Section I Chapter IV of Manual of Rules and Regulations of CBSE in so far as it restricts the right of making complaints against question papers unto some while precluding the students, parents and teachers from making complaints, and consequently issue an appropriate writ, order or direction declaring that the students, parents, teachers and petitioners like concerned organisations have a right to make complaints against the question papers and that the respondents are obliged in law to entertain and decide all such complaints of being personally heard and consequently hold that the time provided for making complaints is to short, unreasonable and unrealistic and consequently direct mere time say at least few weeks be provided for making such complaints against the question papers and consequently further direct providing fixed time frame for deciding such complaints by the respondents. "

(7) IN terms of Rule 10 (iii) (3) (k) of Section I of the Chapter IV of the Memorandum of Rules and Regulations of the first respondent, the Examination Committee is empowered to deal with complaints relating to question papers set for examinations provided the same is made by a Member of the Board or at least two Heads of the affiliated Higher Secondary Schools within three days from the date of the release of question papers.

(8) THE said writ petition was dismissed on 13. 08. 1993 by the Division Bench of this Court. A Special Leave Petition was filed before the Apex Court against the said order, but the same was also dismissed by the Apex Court vide order dated 09. 01. 1995 stating "petition for special Leave is dismissed on the ground of delay as also on merit".

(9) ANOTHER writ petition was filed by the petitioner, which was marked as CWP No. 1667 of 1993 wherein a prayer was made for return of the answer books to the candidates, as also disclosure of the sample answers to the examiners. The said writ petition was also dismissed vide order dated 10. 09. 1993 stating as under :-

". . . The petitioners also want the respondent should have a provision for return of answer sheets after the declaration of the results. We see no particular advantage to the students by return of their answer sheets specially, to the context of the examination under consideration. Therefore, we find no substance in this grievance of the petitioners. "

". . . Another grievance of the petitioner in the present writ petition is regarding disclosure of the sample answers, which the respondent Board provides to the examiners before the process of evaluation of answer sheets begins, the getting of the question papers in the examination and the evaluation of the answers Is the prerogative of the examining body and we do no consider is advisable to allow any interference therein. Secondly, the disclosure of the sample answers without the return of the answer sheets to the students after the examinations are over will mean nothing. On the other hand, if the answer sheets are to be returned and sample answers to the question prepared by the Board are to be disclosed, it will lead to an unending debate, controversy and disputes. This can neither permitted nor encouraged. Therefore, this request of the petitioners cannot be entertained. "

(10) THE Court, however, despite absence of any provisions for any re-evaluation, directed the first respondent herein to consider the introduction thereof. The Court further directed to issue a fresh questionnaire to the affiliated schools and others regarding use of multiple sets of question papers.

(11) THE first respondent filed a Special Leave Petition before the Apex Court against the said order dated 10. 09. 1993, which was marked as SLP No. 17165 of 1993 and by judgment / order dated 05. 11. 1993, the Apex Court allowed the said petition stating as under :-

"the High Court has further directed the Board to consider the question of reintroducing the system of revaluation of answer sheet in the light of the observation made by the high Court. We are of the view that in view of the law laid down by this Court, no directions can be given to the Board to introduce the system of reevaluation. We leave this question entirely to the discretion of the Board. The Special Leave Petition is disposed off with the above observations. "

(12) AS regards use of multiple sets of question papers, the Apex Court in the aforesaid SLP no. 17165 of 1993 observed as under :-

". . . We have heard learned counsel for both the parties. So far as the directions given by the High Court regarding the enforcement of multiple sets system is concerned, we see no grounds to interfere. We leave it to the Central Board of secondary Education to comply with the High Court direction and take a conscious decision in this respect. "

(13) THE first respondent herein, circulated the questionnaire to the principals of the affiliated schools and gave wide publicity about. it in various newspapers. It also set up an expert Committee consisting of Members, who were the Officers of the Board, to compile, analyse, interpret and advise on the responses. The said Committee was constituted in consultation with the National Council of Education.

(14) DESPITE the same, another writ petition was filed by the petitioners being Civil miscellaneous Petition No. 9291 of 1993, wherein it was prayed as under :-

". . . It is therefore most respectfully prayed that this Honble Court be pleased to pass an order restraining the respondents from introducing MSP in 1994 examination and for implementation of the judgment the study contemplated be got done through an independent agency. . . "

The said writ petition was dismissed on 04. 02. 1994 by the Division Bench of this Court.

(15) YET again, a writ petition was filed by the petitioner being CWP No. 1363 of 1993 praying for the following relief :-

". . . issue a writ of mandamus or any other appropriate writ, order or direction be issued to the respondents to take immediate steps to frame rules and regulations requiring evaluation and certification of the difficulty level and the time liable to be spent in answering the question papers set by respondent No. 1 by an average student under examination condition, so as to ensure that in future the examinees are not confronted with question papers which have not been tested on the said touchstone by the respondents. "

Vide Order dated 27. 05. 1994, this Court held as under :-". . . On consideration of the entire examination system, including the marking scheme and discussing the same at length with the Chief Controller of the Examination, c. B. S. E. we are of the opinion that by and large the examination system seems to be quite scientific, systematic and has been designed to maintain high academic standards while safeguarding the interest of the students. At all levels, utmost care is taken to achieve the object of excellence and high standard of examination. All concerned authorities are conscious of their onerous responsibilities. In our opinion, if certain amendments are made in the bye-laws, and clear, comprehensive and specific instructions are given to the paper setter and moderator, the examination system can be further improved. "

(16) HOWEVER, certain directions were given regarding amendments and changes to be carried out in existing examination bye-laws. Pursuant to the said observations, an Expert committee, which was constituted on 14. 06. 1994 for going into the relevant examination bye-laws, approved the proposed amendment in examination bye-laws on 09. 09. 1994. The proposed amendment in examination bye-laws were approved by the Governing Body of the central Board of Secondary Education (in short, the cbse) on or about 20. 09. 1994.

(17) HOWEVER, the first respondent filed a Special Leave Petition before the Apex Court against the said Order dated 27. 05. 1993, which was disposed of by the Apex Court observing as under:-

". . . We see no ground to interfere with the Impugned judgment of the High Court. We are, however, of the view that the High Court has not give any direction to the respondents to amend the bye-laws or to follow the directions given in the judgment. These are all various suggestions given by the High Court for the consideration of the respondents. With these observations, special leave petition is dismissed. "

(18) DESPITE the same, another application was filed being Civil Miscellaneous Petition No. 8898 of 1994 in CWP No. 1363 of 1994 seeking directions to the respondents to carry out amendments in the bye-laws, praying thereunder :-

". . . direct the respondenttocomplyimmediatelywiththejudgmentdated27. 05. 1994 and file a report before this Honble Court with a copy to the petitioner given the details of the amendments made by it in the examination bye-laws, rules, regulations and guidelines laid for all concerned with the process of paper setting, etc. as directed in the judgment before the process of paper setting starts, for the examinees of class XII batch for the year 1995. "

The said application was dismissed by this Court on 13. 01. 1995.

(19) IT is a trite law that the Court would not interfere with the policy decision taken by the state, far less in relation to the Education Policy, which has been evolved by experts.

(20) THE Apex Court in the case titled maharashtra State Board of Secondary Education v. Paritosh Bhupesh Kumarsheth Etc. reported in AIR 1984 SC 1543 [LQ/SC/1984/165] ; 1984 (4) SCC 27 [LQ/SC/1984/165] held as under:-

"the process of evaluation of answer papers or of subsequent verification of marks does not attract the principle of natural justice since no decision making process which brings about adverse evil consequences to the examinees is involved. The principle of natural justice cannot be extended beyond reasonable and rational limits and cannot be carried to such absurd lengths as to make it necessary that candidates who have taken a public examination should be allowed to participate in the process of evaluation of their performance or to verify the correctness of the evaluation made by the examiners by themselves conducting an inspection of the answer books and determining whether there has been proper and fair evaluation of the answers by the examiners. "

". . . It is in public interest that the results of public examinations when published should have some finality attached to them. If inspection, verification in the presence of the candidates and revaluation are to be allowed as of right, it may lead to gross and indefinite uncertainty, particularly in regard to the relative ranking, etc. of the candidates, besides leading to the utter confusion on account of the enormity of the labour and time involved in the process. "

". . . The Court should be extremely reluctant to substitute its own views as to what is wise, prudent and proper in relation to academic matters in preference to those formulated by professional men possessing technical expertise and rich experience of actual day to day working of educational institutions and the departments controlling them. "

(21) THE Apex Court, thus, has clearly held that this Court should be extremely reluctant to substitute its own views as to what is wise, prudent and proper in relation to academic matters in preference to those formulated by professional men possessing technical expertise and rich experience of actual day to day working of educational institutions and the departments controlling them.

(22) IT is also trite that the Courts in exercise of its power of judicial review would not interfere with the mattes of Government policy unless it is highly arbitrary, capricious, discriminatory and / or violative of constitutional and statutory provisions. In Bihar State Electricity Board and Anr. Vs. Usha Martin Industries and Anr. reported in 1997 (5) SCC 289 [LQ/SC/1997/859] , it has been held :-

"we are of the view that the High Court was clearly in error in directing modification of the tariff fixed by the Board. "

(23) IN Government of Andhra Pradesh Vs. AT. Srinivasa Reddy and Ors. reported in 1998 (8) SCC 765 [LQ/SC/1997/1488] , it has been held :-,

"we are unable to uphold the direction given by the High Court to the appellant to issue orders in conformity with the report of the House Committee. Since the State government is not bound to accept the recommendations of the House Committee, the High Court could not issue a writ or direction in exercise. of its jurisdiction under article 226 of the Constitution directing the appellant to pass an order giving effect to the recommendations of the House Committee. It is open to the State Government either to accept or not to accept the recommendations of the House Committee. But, at the same time, we are of the view that the respondents can make a representation to the State Government on the basis of the resolution dated 20. 11. 1993 passed by the University and point out that the Merit Promotion Scheme is still in operation and has not ceased to be in operation in (sic after) 1987. If such a representation is made by the respondents, the competent authority shall consider the same and pass appropriate order on the said representation keeping in view the law laid down by this Court in Dr. Rashmi Srivastava as well as th9 laws governing the University. Such order shall be passed within a period of three months of the submission of the representation. The appeal is disposed of accordingly. No order as to costs. "

(24) IN Krishnan Kakkanth Vs. Government of Kerala and Ors. reported in 1997 (9) SCC 495 [LQ/SC/1996/1723 ;] ">1997 (9) SCC 495 [LQ/SC/1996/1723 ;] [LQ/SC/1996/1723 ;] , it has been held that unless Government policy is demonstrably arbitrary, capricious, irrational, discriminatory or violative of constitutional or statutory provisions, the courts cannot strike down the same.

(25) THESE principles has been reiterated in M. P. Oil Extraction and Anr. Vs. State of M. P. and ors. reported in 1997 (7) SCC 592 [LQ/SC/1997/933] . It was as under :-

". . . It needs to be noted that In matters of economic rights and policy decision, the scope of judicial review is limited and circumscribed. It may also be indicated here that within the ambit of protective measure of assured supply of sal seeds, such supply at concessional price is also a relevant consideration. The State Government may not be dictated by the only consideration of more revenue. "

(26) THE aforementioned principles have been reiterated in the recent judgment of the Apex court in BALCO Employees Union (Regd.) Vs. Union of India and Ors. in T. C. (Civil) No. 8 of 2001 disposed of on 10. 12. 2001 wherein upon noticing several earlier decisions, it was stated :-

"it is evident from the above that it is neither within the domain of the Courts nor the scope of the judicial review to embark upon an enquiry as to whether a particular public policy is wise or whether better public policy can be evolved. Nor are our courts inclined to strike down a policy at the behest of a petitioner merely because it has been urged that a different policy would have been fairer or wiser or more scientific or more logical. "

In the Instant case, as noticed hereinabove, the respondent on its own constituted committees, which had gone into the matter in depth having regard to the specific contentions raised in this petition.

(27) EVEN in a public interest litigation, the Court will not pass any order, which would be in violation of the statute. At best, it can fill in the gaps where there does not exist any statutory provisions.

(28) IN Narmada Bachao Andolan. Etc. Vs. Union of India and Ors. reported in AIR 2000 SC 3751 [LQ/SC/2000/1509] , the Apex Court has held :-

". . . At the same time, in exercise of its enormous power, the Court should not be called upon or undertake governmental duties or functions. The Courts cannot run the Government nor the administration indulge in abuse or non-use of power and get away with it. The essence of judicial review is a constitutional fundamental. The role of the higher judiciary under the constitution casts on it a great obligation as the sentinel to defend the values of the constitution and rights of Indians. The Courts must, therefore, act within their judicially permissible limitations to uphold the rule of law and harness their power in public interest. It is precisely for this reason that it has been consistently held by this Court that in matters of policy the Court will not interfere. When there is a valid law requiring the Government to act in a particular manner the Court ought not to, without striking down the law, give any direction. which is not in accordance with law. In other words, the Court itself is not above the law. In respect of public projects and policies, which are initiated by the Government the courts should not become an approval authority. Normally such decisions are taken by the Government after due care and consideration. In a democracy welfare of the people at large, and not merely of a small section of the society, has to be the concern of a responsible Government. If a considered policy decision has been taken, which is not in conflict with any law or is not mala fide, it will not be in Public interest to require the Court to go into and investigate those areas, which are the function of the executive. For any project which is approved after due deliberation the court should refrain from being asked to review the decision just because a petitioner in filing a PIL alleges that such a decision should not have been taken because an opposite view against the undertaking of the project, which vie may have been considered by the Government, is possible. When two or more options or views are possible and after considering them the Government takes a policy decision it is then not the function of the Court to go into the matter afresh and, in a way, sit in appeal over such a policy decision. "

(29) THE Courts cannot and should not be called upon to undertake the Government duties and functions.

(30) EVEN as regard to the educational policy, different persons may approach the subject with their social and economic belief.

(31) IN Ira Y. Munn Vs. State of Ellinois, 1876 (94) US (Supreme Reports) 113, it has been held that the Courts do not substitute their social and economic beliefs for the judgment of the legislative bodies. The said principles would apply in the instant case also. It is also trite that the Court will be slow in the matters involving financial implications.

(32) THE conspectus of events as noticed hereinbefore would clearly show that the matter relating to fixation of syllabus, the mode and manner in which the question papers are to be set, the answers are to be evaluated a also the right of the students to have a look at the question papers had been answered by this Court as also the Supreme Court of India in the previous litigations.

(33) THE said decisions, it is axiomatic, would attract the principles and operate as res judicata. The question that the general principles of res judicata and / or constructive res judicata would apply even in a writ proceedings is no longer res integra.

(34) IN Ashok Kumar Srivastav Vs. National Insurance Co. Ltd. and Ors. reported in AIR 1998 SC 2046 [LQ/SC/1998/512] , it has been held as under :-

"thus, the legal position is clear and the respondent cannot now re-agitate the question regarding maintainability of the suit under Section 34 of the. "

(35) A public interest litigation at the instance of the same party should also be given quietus. Unless there exists any alteration in the position or situation, the earlier judgments should not be re-opened, particularly when the same had been acted upon. The doctrine of res judicata has received a statutory sanction in the Code of Civil Procedure, as a matter of prudence and to give due weightage to a finding or a decision, so as to reach finality Of dispute of the same party. Its object is to achieve finality of dispute so as to give efficacy to a finding of the Court, rather than permit the parties to go to trial more or less on the same points over and again and thus introducing the possibility of conflicts in opinion. Judicial comity or amity as is well known should be maintained. Judicial verdict has sanctity and cannot be the subject matter of discussions time and again involving identical or Similar issues. The reasonableness of the doctrine predominantly being based upon principle of equality and justice, in our opinion, it would neither be equitable nor fair to reopen the concluded issues.

(36) FOR the reasons aforementioned, we are of the opinion that this Court should not go into these aforementioned questions once over again.

(37) THUS, there is no merit in this petition and is accordingly dismissed.