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2006 DIGILAW 471 (ORI)

Abhilipsa Sahoo v. State of Orissa

2006-06-29

P.K.MOHANTY, R.N.BISWAL

body2006
JUDGMENT P. K. MOHANTY, J. : The petitioner calls in question the marks awarded to her in English, Mathematics, Geography & Drawing papers in the U.P. (M.E.) Common Examination, 2006 conducted by the Board of Secondary Education, Orissa as mala fide, arbitrary, improper and grossly inconsistent with her performance in the examination. Sri S. P. Mishra, learned Senior Counsel submits that the petitioner was a brilliant student all through and per¬formed excellent in the aforesaid Board Examination. Her perform¬ance was outstanding and she expected not less than 525 out of a total mark of 550 in the aggregate. However, when the result was published she found that she has 461 marks whereas average stu¬dents of her school have secured higher percentage of marks. It is submitted that the arbitrary and despotic attitude and action of Opp.Parties in award of poor marks to the petitioner despite excellent performance have caused acute mental anguish, demorali¬zation, depression and psychological trauma. Petitioner through her father guardian informed and requested the District Inspector of Schools as well as the Collector by application dated 15.4.2006 for re-checking or re-evaluation of answer scripts in view of the most probable and plausible reason that petitioner’s answer scripts have not been properly and justly examined and evaluated resulting in award of low marks vis-a-vis her perform¬ance. 2. Opp.Party No.5 after re-checking of addition of marks notified on 23.5.2006 that the petitioner has secured in English 87 as against 86, 40 in Geography as against 38 and in rest of the papers like Mathematics, History and Drawing the mark has remained unchanged. In all, petitioner has been informed that she has secured 3 more marks as aforesaid and according to the peti¬tioner, it is a tricky maneuver by enhancing only 3 marks to hush up the issue and to close the chapter. Sri Mishra submits that the marks have not been awarded in terms of her performance in the Board’s examination. In all, petitioner has been informed that she has secured 3 more marks as aforesaid and according to the peti¬tioner, it is a tricky maneuver by enhancing only 3 marks to hush up the issue and to close the chapter. Sri Mishra submits that the marks have not been awarded in terms of her performance in the Board’s examination. Referring to some publication in the newspapers, it is submitted that as per the report, there was adoption of corrupt practice in pre-fixing the marks in the evaluation process of answer papers of Class-VII Board Examina¬tion, 2006, changing of evaluation centres, taking the students to more difficult inaccessible areas and operation of racket in the evaluation process in Kendrapara and Pattamundai Education Circles, and, therefore, the petitioner’s apprehension that she has been victimised in the hands of authorities is fortified. It is, therefore, submitted that even though the Board’s Regulation does not permit and there is no provision for re-evaluation of answer scripts, in the facts of the petitioner’s case. The answer scripts should be called for and the Court should peruse the answer script to find out whether the marks have been improperly awarded and then the answer papers for valuation by a Board of Examiners. 3. It is a well settled principle of law that in a public examination a candidate is hardly a competent person to assess her/his performance and it is impermissible in law for the Court to call for the answer scripts and direct re-evaluation on the basis of such assessment or apprehension. The apex Court in Council of Higher Secondary Education, Orissa v. Jasodhara Padhi (Civil Appeal No.1362 of 1990 arising out of SLP (Civil) No.12248 of 1989) while considering a similar case where this Court had directed re-evaluation of answer paper of the petitioner in Eng¬lish on the apprehension of the petitioner that the marks have not been properly valued, have observed that in absence of any rule, no authority has the power to direct re-evaluation of answer given by a candidate in examination. Since the rule do not provide for re-evaluation of answer, the marks awarded by the examiner appointed by Council acquires finality and no other authority has power to reasses the same for the purpose of award¬ing marks. Since the rule do not provide for re-evaluation of answer, the marks awarded by the examiner appointed by Council acquires finality and no other authority has power to reasses the same for the purpose of award¬ing marks. It is observed that in such cases the Court should not direct for the revaluation of the answer books of the examinee unless there are compelling reasons for the same. If there are allegations of mala fide which are founded on good grounds, or if it is found that the answer books of an examinee could not be assessed by the examiner, the Court may direct for the revalua¬tion of the answers. But, however, this should be done only in rare cases where a very strong ground is made out for adopting such a course. The petitioner therein sought for re-evaluation on the ground that she was a brilliant student and deserved higher marks having regard to the quality of her answer. The apex Court further observed that if an examinee’s own assessment is taken into consideration in directing the revaluation of answer books there will be chaos and no examination could attain finality. 4. In Maharashtra State of Secondary and Higher Secondary Education and another v. Paritosh Bhupesh Kumarsheth, AIR 1984 Supreme Court 1543, the apex Court has rejected the contention and set at naught the decision of the High Court that every student has a right to receive fair play in examination and get appropriate marks matching his performance. Otherwise, it will be a denial of right to such fair play if there is to be a prohibi¬tion on the right to demand revaluation. Otherwise, it will be a denial of right to such fair play if there is to be a prohibi¬tion on the right to demand revaluation. The apex Court in the aforesaid case took note of the counter affidavit of the Board conducting HSC Examination in which it has set out enormity of the task with which it is based, namely, completing examination twice during each year the process of evaluation and release of result of some 3 lakhs of candidates appearing for the SSC and H.S.C. examinations to be held in an interval of only a few months from one another and if the candidates are all to be given inspection of their answer books or the revaluation of the answer papers is to be done in the presence of the candidates, the process is bound to be extremely time consuming and if such a request is made by even about 10% of the candidates who will be 30,000 in number, it would involve several thousands of man hours and is bound to throw the entire system out of gear. It is in the public interest that the results of public examinations when published should have some finality attached to them. If inspec¬tion, verification in the presence of the candidates and revalua¬tion 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 utter confu¬sion on account of the enormity of the labour and time involved in the process. The apex Court while summing up observed that the resultant legal position emerging from High Court judgment is that every candidate who has appeared for any such examination and who is dissatisfied with his result would, as an inherent part of his right to fair play be entitled to demand a disclosure and personal inspection of his answer scripts and would have a further right to ask for revaluation of his answer papers and in any event far from advancing public interest and fair play to the other candidates in general, any such interpretation of the legal position would be wholly defensive of the same. It will be wholly wrong for the Court to make a pedantic and purely idealistic approach to the problems of this nature, isolated from the actual realities and grass root problems involved in the working of the system and unmindful of the consequences which would emanate if a purely idealistic view as opposed to a pragmatic one were to be propounded. It is equally important that the Court should also, as far as possible, avoid any decision or interpretation of a statutory provision, rule or by-law which would bring about the result of rendering the system unworkable in practice. 5. In Rashmi Ranjan Sahoo v. Board of Secondary Education, Orissa and another, 2003 (I) OLR 419 a Division Bench of this Court while considering the prayer of the petitioner for calling for the answer scripts and for re-evaluation of the answer, took note of the decision of the apex Court in Council of Higher Secondary Education, Orissa v. Jasodhara Padhi (supra) had ob¬served that “Only if the compelling circumstances are made out by a candidate, in a given case with reference to facts, that the Court can in exercise of its extraordinary power, direct the production of the answer papers and then order a revaluation on the existence of clear irregularities in valuation. But, it is also a power which is expected to be used with care and caution. The Court further observed that in an academic matter, the Court cannot assume the role of an Expert, especially when the experts in the field are in charge of the examinations, the valuation the like. Another Division Bench of this Court in the case of Rajib Lochan Panda v. Council of Higher Secondary Education, Orissa and another, 2003 (Supp.) OLR 11 referring to earlier decision of this Court and of the apex Court reiterated the view that while the rules do not provide for revaluation of answers, the marks awarded by the examiner appointed by the Council acquires finali¬ty and no other authority has the power to re-assess the same for the purpose of awarding marks and in such a case, the Court should not direct revaluation of the answer books of an examinee unless there are compelling reasons for the same. In this con¬text, a decision of the Division Bench of Allahabad High Court in Km. In this con¬text, a decision of the Division Bench of Allahabad High Court in Km. Farah Mustafa v. Secretary, Board of High School Intermediate Education, U.P. and others, AIR 2002 Allahabad 68 was taken note of in which it was observed that “If the High Court starts enter¬taining requests for production of answer-sheets in Court, it will not only cast an onerous duty upon the Board but would also give rise to spate of litigation in this Court as many disgrun¬tled or dissatisfied students may like to take a chance by filing a writ petition and getting an order for production of answer-books in Court with the object of manipulating the affairs as in the said case. The Court was of the opinion that except in very rare cases where the petitioner makes out a very strong and fool proof case no order for production of answer-books in Court should be passed. 6. In a recent decision in Promod Kumar Srivastava v. Chairman, Bihar Public Service Commission, Patna and others, (2004) 6 Supreme Court Cases 714 the apex Court has ruled that in absence of any provision for re-evaluation of answer books in the relevant rules, no candidate in an examination has got any right whatsoever to claim or ask for re-evaluation of his marks and order for re-evaluation of the same can be given. Apex Court referring to the decision in Maharashtra State Board of Secondary and Higher Secondary Education (supra) observed that “many candi¬dates may like to take a chance and pray for re-evaluation of their answer books. Naturally, the Court will pass orders on different dates as and when writ petitions are filed. The examin¬ing authority will have to then send the copies of individual candidates to examiners for re-evaluation which is bound to take time. The examination conducted by the Commission being a compet¬itive examination, the declaration of final result will thus be unduly delayed and the vacancies will remain unfilled for a long time. The court posed a question to what will happen if a candi¬date secured less mark in revaluation and answered that he may come forward with a plea that the marks as originally awarded to him may be taken into consideration. The apex Court held that in absence of any clear rules on the subject re-evaluation is impermissible under law. The court posed a question to what will happen if a candi¬date secured less mark in revaluation and answered that he may come forward with a plea that the marks as originally awarded to him may be taken into consideration. The apex Court held that in absence of any clear rules on the subject re-evaluation is impermissible under law. Yet in another case in Board of Second¬ary Education v. Pravas Ranjan Panda & Anr., Civil Appeal No.5413-5414 of 2004 in order dated 13.8.2004 the apex Court reiterating the view in Pramod Kumar Srivastav’s case (Supra) set aside the order of this Court for re-evaluation of answer books of all the examinees securing 90% or above marks. 7. In the conspectus of the decision referred to in the foregoing paragraphs, the law is well settled that in absence of any provision in Board’s Regulation for re-evaluation of answer scripts, it is impermissible for the petitioner to ask for pro¬duction of answer books and for re-evaluation of answer papers, nor the Court can call for the answer papers and direct re-evalu¬ation of the same. The writ petitioner on the basis of assessment of her own performance in the examination has prayed for re-evaluation of the answer papers. The allegation of mala fide, arbitrary, improper and unfair award of marks are on the basis of an assumption and apprehension. No allegation has been substanti¬ated or explained as to how the marks are arbitrary, improper or unfair. The allegation seems to be based solely on apprehension, since the petitioner did not get marks up to her satisfaction. In that view of the matter, we do not find any merit in the writ application and, accordingly, the writ petition is dis¬missed. R. N. BISWAL, J. I agree. Petition dismissed.