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2010 DIGILAW 885 (CAL)

Olivia Mukherjee v. Vidyasagar University

2010-07-29

DEBASISH KAR GUPTA

body2010
JUDGMENT 1. THE subject-matter of challenge in this writ application is the assessment of answer script of the petitioner in "Banking Laws with Negotiable Instrument Act (Paper-XXIX)" in respect of 5th Semester Examination held in 2007. 2. THE brief history of the case is this the petitioner appeared in the examination of 5th Semester Examination LL.B. (3-year course) of 2007 from the Midnapore Law College affiliated under the Vidyasagar University. THE petitioner applied for scrutiny of her answer scripts in respect of two subjects, namely, "Law of Evidence" (Paper-XXVI) and "Banking Laws including Negotiable Instruments Act". THE number in respect of the subject of "Law of Evidence" increased but the number in respect of "Banking Laws including Negotiable Instruments Act" remained same after scrutiny. THE petitioner filed an application under the Right to Information Act, 2005. Subsequently, the petitioner filed this writ application. In course of hearing of this case, this Court directed production of the answer script of the petitioner in "Banking Laws including Negotiable Instruments Act" (hereinafter referred to as the said answer script) before the Court. Pursuant to such direction the said answer script is produced before this Court today by the learned Counsel appearing for the respondent- University. Let a true copy of the said answer script be kept en record. 3. ACCORDING to Mr. L.C. Bihani, the learned Senior Advocate appearing on behalf of the petitioner, two separate marks were allowed in reject of two parts of that question No. 7 in the aforesaid question paper of "Banking Law including Negotiable Instruments Act". Similarly, separate marks were allotted in respect of parts (a), (b), (c) of question No. 8. Drawing the attention of this Court towards the statements made in paragraph 12 of this writ application as also towards the said answer script, Mr. Bihani further submits that some portions of the answers in respect of the above two questions were underlined. No marks was awarded in respect of one part of question No.7 in spite of allotment of marks for that portion separately. No marks was awarded in respect of answers to question Nos.8(a) and (b) in spite of separate allotment of marks. The attention of the Court is further drawn towards the answer of question No. 8(c) to submit that even after allotment of marks that was cancelled without putting any signature thereof. ACCORDING to Mr. No marks was awarded in respect of answers to question Nos.8(a) and (b) in spite of separate allotment of marks. The attention of the Court is further drawn towards the answer of question No. 8(c) to submit that even after allotment of marks that was cancelled without putting any signature thereof. ACCORDING to Mr. Bihani in view of the above irregularities, the decision-making process in assessing the said answer script of the petitioner was vitiated. On the other hand, it is submitted by Ms. Debjani Sengupta, the learned Advocate appearing for the respondent-University, that from the underlined portion in respect of the answers of question Nos. 7 and 8 of the said answer script, it is clear that there is an application of mind on the part of the examiner concerned. Therefore, according to the learned Counsel, there was no impropriety with the regard to the decision-making process in assessing the said answer script in question. 4. I have heard the learned Counsels appearing on behalf of the respective parties and I have considered the facts and circumstances of the case carefully. It is true, that a Court sitting in writ jurisdiction should not embark upon the wisdom of a paper setter in allotting marks in respect of different questions of a question paper. Similarly, that Court cannot re-examine the assessment of merit of an examinee done by an examiner. But an examiner is under obligation to apply his mind on the answers given by an examinee as also to award separate marks in respect of all the answers taking into consideration the allotment of marks in respect of those questions. Necessary to point out that if any of those answers does not deserve even one marks then zero should be awarded as an indication of assessment of merit of the examinee concern in respect of his/her answer. If an examiner fails to observe this procedure then the decision-making process suffers from procedural impropriety and it is open for a Writ Court to interfere with the same in course of judicial review on the basis of well-settled principles. If an examiner fails to observe this procedure then the decision-making process suffers from procedural impropriety and it is open for a Writ Court to interfere with the same in course of judicial review on the basis of well-settled principles. Reference may be made to the decision of the State of U. P. vs. Dharmander Prasad Singh, reported in AIR 1989 SC 997 and the relevant portions of the above decision are quoted below : "28........When the issue raised in judicial review is whether a decision is vitiated by taking into account irrelevant, or neglecting to take into account of relevant factors or is so manifestly unreasonable that no reasonable authority, entrusted with the power in question could reasonably have made such a decision, the judicial review of the decisionmaking process includes examination, as a matter of law, of the relevance of the factors." 5. IN the light of the above settled principles of law, while examining the decision-making process, I find that in the question paper under reference, the paper setter allotted two separate marks in respect of two parts of question number 7. Similarly, the paper setter allotted three different marks in respect of three parts of question No. 8. After going through the said answer script I find some underlines in respect of some portions of the answers given by the petitioner in respect of the above questions. But indisputably, one marks was awarded against a part of question No.7 in the said answer script. No marks was awarded in respect of the answer of second part of the above question in spite of allotment of separate marks for the same in the question paper. INdisputably, no marks was awarded in respect of answers of the said answer script in respect of answers of question No.8(a), 8(b) and 8(c). Admittedly, the marks awarded in respect of answer for question No.8(c) was cancelled without putting any signature. 6. THEREFORE, the decision-making process in assessing the merit of the petitioner in respect of the said answer script has been vitiated as indicated hereinabove. The result of the petitioner in respect of "Banking Laws including the Negotiable Instruments Act" in 5th Semester Examination, 2007 (3-year) of LL.B. Course is quashed and set aside. 6. THEREFORE, the decision-making process in assessing the merit of the petitioner in respect of the said answer script has been vitiated as indicated hereinabove. The result of the petitioner in respect of "Banking Laws including the Negotiable Instruments Act" in 5th Semester Examination, 2007 (3-year) of LL.B. Course is quashed and set aside. The respondent No. 2 is directed to depute an experienced examiner from the teachers in the subject in question from any college, other than the college from which the petitioner appeared in the examination in question, to re-examine the said answer script. The above respondent is further directed to publish the result thereof within two weeks from date. The above result shall be handed over to the learned Advocate-on-record appearing on behalf of the petitioner through the learned Advocate appearing for the respondent-University before August 15, 2010. The respondent-University is directed to take all the consequential steps in the matter expeditiously. With the above directions, this writ application stands disposed of. There will be no order as to costs.