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Calcutta High Court · body

2012 DIGILAW 940 (CAL)

Sharmistha Maji v. State of West Bengal

2012-10-10

SOUMITRA PAL

body2012
JUDGMENT In the writ petitions, the petitioners, who applied for being appointed in teaching and non-teaching posts in Government aided schools and had appeared in the Regional Level Selection Test (for short the “RLST”) conducted by the West Bengal School Service Commission (for short “the Commission”), have challenged the method of examination or evaluation of their answer scripts and have prayed for its re-examination or re-evaluation. 2. The facts which are common in all the writ petitions are that the petitioners who appeared in the RLST, being dissatisfied with the marks awarded, filed written applications before the Commission under the Right To Information Act, 2005 (hereinafter referred to as “the RTI Act”) for having copies of their answer scripts. Consequently, the Commission provided the copies of the answer scripts. Perusing the answer scripts, the common grievance of the petitioners is that the said answer scripts were not evaluated in a proper manner. In support of their respective stand, the petitioners in the writ petitions have tried to demonstrate where the examiners had erred in evaluating the answer scripts. It has been stated that though applications were filed before the Commission for re-examination or re-evaluation of the answer scripts, however, those have been turned down in the absence of specific provisions in the West Bengal School Service Commission (Selection of Persons for Appointment to the Post of Teachers) Rules, 2007 (“the Rules” for short). 3. The grievances of the petitioners are that correct answers to questions have been marked to be incorrect and lower marks have been awarded; part marks to part questions have not been awarded properly; while awarding marks, all the correct answers answered by the petitioners have not been taken into consideration and answers given by the petitioners have not been properly evaluated, assessed and marked. 4. In some of the petitions, at the time of admission, directions were issued to file affidavits. Affidavits have been filed and are on record. Since issues involved are identical, by consent of the parties, matters have been and are taken up for hearing analogously. 5. 4. In some of the petitions, at the time of admission, directions were issued to file affidavits. Affidavits have been filed and are on record. Since issues involved are identical, by consent of the parties, matters have been and are taken up for hearing analogously. 5. Learned senior advocates and advocates, appearing on behalf of the petitioners, reiterating the statements in the writ petitions, submit that the defects or errors in the method of examination or in the evaluation of the answer scripts are so palpable that though the Rules of the Commission do not permit re-examination or re-evaluation, however, if errors are allowed to persist, it would jeopardise the future prospects of the petitioners. Submission is that since RTI Act is for promotion of transparency and accountability in the working of every authority, any order denying re-examination or re-evaluation of the answer scripts would be in breach of its object. Since Writ Courts are Courts of Equity and powers of Court are undisputed, appropriate order may be passed directing re-examination or re-evaluation of the answer scripts. 6. Learned advocate, appearing on behalf of the Commission, relying on the affidavit in opposition filed on its behalf has submitted that the candidates who applied for appointment for teaching and non-teaching posts had participated in the said RLST, a competitive examination, with full knowledge that the said competitive examination would be conducted in terms of the Rules. The petitioners, knew it very well that in the Rules there is no provision for reexamination or re-evaluation or review of the answer scripts and knowing this fully well, they subjected themselves to the Rules and had participated in the competitive examination. Now, after participating in the RLST conducted under the Rules, the petitioners cannot turn back and contend that their answer scripts are to be re-examined or re-evaluated as because they are not satisfied with the marks awarded. Moreover, as the constitutionality of the Rules are not under challenge, the writ petitions are not maintainable. 7. It has been further submitted that several lakhs of candidates appear in the RLST, a competitive examination, to compete and to have their names recommended for appointment in government aided schools. RLST conducted by the Commission is a test for elimination of candidates and selecting of candidates who come within the zone of consideration as per declared vacancies of the Commission. RLST conducted by the Commission is a test for elimination of candidates and selecting of candidates who come within the zone of consideration as per declared vacancies of the Commission. RLSTs do not judge the merit of the candidates; rather through it candidates are selected by the method of elimination to be commensurate with the available number of posts without violating the law of the land. Like other competitive examinations, in RLSTs conducted by the Commission there is no scope for re-examination or re-evaluation or review of answer scripts. For the purpose of elimination, using the method of competitive examination, a line has to be drawn and is drawn between a set of candidates who become eligible in the written test for the next round, that is, personality test, and a set of candidates who are not considered eligible in the written test for the next round. According to the Commission, such eligibility and ineligibility has no connection with the merit of a candidate. A candidate has to accept the result of the written test, that is the marks awarded by the examiners, unless it is found from the answer script that the examiner failed to examine an answer and for that no marks has been awarded to a candidate and it is found from the answer script that there is an error in totalling of marks. In such event the Commission shall take appropriate steps to rectify the errors but, it is submitted, occurrence of such mistake is nil in reality as first the examiner himself, after examining and awarding marks against the answers after judging the merits of the answer, checks whether all questions answered by a candidate have been evaluated and marks have been allotted or not and then calculates the total marks. Thereafter, the scrutiniser checks whether all answers in an answer script have been examined and the marks awarded against the answers have been correctly totalled. 8. According to the Commission, the judgment of the examiner, being an expert, as to the merit of an answer for awarding marks against a particular answer depends on various factors starting from handwriting and quality of spelling of a candidate. 8. According to the Commission, the judgment of the examiner, being an expert, as to the merit of an answer for awarding marks against a particular answer depends on various factors starting from handwriting and quality of spelling of a candidate. The reflection of an answer which contains words and expressions used in the answer, including punctuation marks – to a question written by a candidate can and does vary in the mind of an examiner which is also allowable and to minimise it to the extent possible, model answers are handed over to the examiners. However, the possibility of variation of views between two examiners though minimised cannot be eroded altogether. But there is no better method for examination of an answer to a question where a candidate has to write a few words or sentences. 9. It has also been submitted on behalf of the Commission that the RTI Act does give a candidate the right to see and get a copy of the answer script but it cannot be said that it is only a natural consequence that after a candidate gets the copy of his answer script, his answer scripts are to be re-examined or reevaluated just because he thinks that more marks should have been awarded to him by the examiner as while taking the competitive examination like RLST a candidate knew very well of the RTI Act and the Rules of the Commission. Though the RTI Act was enacted with the object to promote transparency and accountability of every public authority, however, there is no provision in the RTI Act wherefrom it can be said that some provisions which have not been legislated are to be read in a Rule following which competitive examinations, the RLST, are held. It is further submitted that under the RTI Act an applicant is informed about all information which he wants to know if such information is not exempted from disclosure and accordingly in respect of a RLST, any applicant can know the marks awarded to him, whether marks were at all awarded in respect of an answer and whether there is an error in the total marks but whether an answer script in respect of an examination is to be re-examined or reevaluated or reviewed, is not the subject matter contemplated under the RTI Act. 10. 10. Learned senior advocates and advocates on behalf of the parties have relied on judgments which shall be dealt with appropriately. 11. The issue which requires to be considered is though it is contended by the Commission that the Rules do not provide for re-examination or re-evaluation of answer scripts and the RLST examinations are in the nature of elimination tests and marks awarded are checked and re-checked and margin of error in evaluation is nil, in such circumstances whether there is any scope for re-examination or re-evaluation of the answer scripts. 12. In this context it is appropriate to set out the preamble of the RTI Act which is as under : “An Act to provide for setting out the practical regime of right to information for citizens to secure access to information under the control of public authorities, in order to promote transparency and accountability in the working of every public authority, the constitution of a Central Information Commission and State Information Commission and for matters connected therewith or incidental thereto. WHEREAS the Constitution of India has established democratic Republic; AND WHEREAS democracy requires an informed citizenry and transparency of information which are vital to its functioning and also to contain corruption and to hold Governments and their instrumentalities accountable to the governed; AND WHEREAS revelation of information in actual practice is likely to conflict with other public interests including efficient operations of the Governments, optimum use of limited fiscal resources and the preservation of confidentiality of sensitive information; AND WHEREAS it is necessary to harmonise these conflicting interests while preserving the paramountcy of the democratic ideal; NOW, THEREFORE, it is expedient to provide for furnishing certain information to citizens who desire to have it.” (Emphasis supplied) 13. Admittedly, the petitioners, the applicants for teaching and non-teaching posts, had appeared in the RLST. Being dissatisfied with the result of the test, they sought information under the RTI Act with regard to their respective answer scripts. Pursuant to the information received and after having copies of the answer scripts provided by the Commission, copies of which have been annexed to some writ petitions, they have tried to demonstrate where the examiners had erred in their evaluation, and their common grievance is that the answer scripts were not examined or evaluated properly. 14. Pursuant to the information received and after having copies of the answer scripts provided by the Commission, copies of which have been annexed to some writ petitions, they have tried to demonstrate where the examiners had erred in their evaluation, and their common grievance is that the answer scripts were not examined or evaluated properly. 14. True, as submitted on behalf of the respondents, RLSTs conducted by the Commission are competitive examinations and are tests for elimination of candidates. However, in such background, even for the sake of argument, accepting the stand of the Commission that RLST is a method for selection of candidates who come within the zone of consideration as per vacancies declared by the Commission and the scope of re-examination or re-evaluation is very limited, the question is since answer scripts were provided to the petitioners pursuant to applications under the RTI Act, though the Rules do not provide for re-evaluation or re-examination of the answer scripts, whether the prayer for reexamination or re-evaluation can be denied. It is an established fact that the examiners are experts in their respective subjects. However, it has to be borne in mind that to err is human. Since copies of the answer scripts were provided to the petitioners pursuant to the applications under the RTI Act and as Commission has laid down a standard for evaluation of the answer scripts, as evident from its affidavits, in order to achieve the declared goal of promoting “transparency and accountability”, the Commission, a public authority, while shouldering responsibility, should evolve a mechanism for re-examination or reevaluation of the answer scripts. Since the preamble of the RTI Act lays down the scope and purpose of the Act, re-examination or re-evaluation by the Commission would be a concrete step in promoting “transparency and accountability”, as it would dispel doubts about the manner of examination or evaluation of the answer scripts. In other words, merely furnishing an answer script does not promote accountability as the Commission has to explain the method of examination or evaluation which can be done, if sought for, by a candidate by re-examination or re-evaluation of his answer script thus making the system transparent. 15. In other words, merely furnishing an answer script does not promote accountability as the Commission has to explain the method of examination or evaluation which can be done, if sought for, by a candidate by re-examination or re-evaluation of his answer script thus making the system transparent. 15. The submission of the Commission that the petitioners are estopped from praying for re-examination or re-evaluation as they had appeared after being well conversant with the Rules which do not provide for re-examination or reevaluation or on the ground that no challenge in the petitions has been made to the Rules cannot be accepted as denial of the prayer would defeat the basic object of the RTI Act. It is to be noted that an examiner is not infallible as he can commit mistakes and a candidate whose future depends on the RLST should not suffer for the mistake, if any, of the examiner. Though it has been emphatically submitted on behalf of the Commission that the writ petitions are not maintainable as the Rules are not under challenge, in my view since denial of the prayer for re-examination or re-evaluation would set at naught the very purpose of the statute, in such circumstances Writ Court, being a Court of Equity, should intervene. 16. The submission on behalf of the Commission that re-examination or reevaluation of answer scripts may not be directed, as the mechanism evolved for examination or evaluation of answer scripts is full proof, cannot be accepted in view of the principles of law laid down by the Supreme Court in Institute of Chartered Accountants of India –v- Shaunak H. Satya and Ors. : (2011) 8 SCC 781 , relied on by the petitioner, which are as under : “Examining bodies like ICAI should change their old mindsets and tune them to the new regime of disclosure of maximum information. Public authorities should realise that in an era of transparency, previous practices of unwarranted secrecy have no longer a place. Accountability and prevention of corruption is possible only through transparency. Attaining transparency no doubt would involve additional work with reference to maintaining records and furnishing information. Parliament has enacted the RTI Act providing access to information, after great debate and deliberations by the civil society and Parliament. Accountability and prevention of corruption is possible only through transparency. Attaining transparency no doubt would involve additional work with reference to maintaining records and furnishing information. Parliament has enacted the RTI Act providing access to information, after great debate and deliberations by the civil society and Parliament. In its wisdom, Parliament has chosen to exempt only certain categories of information from disclosure and certain organisations from the applicability of the Act. As the examining bodies have not been exempted, and as the examination processes of the examining bodies have not been exempted, the examining bodies will have to gear themselves to comply with the provisions of the RTI Act. Additional workload is not a defence. If there are practical insurmountable difficulties, it is open to the examining bodies to bring them to the notice of the Government for consideration so that any changes to the Act can be deliberated upon. Be that as it may.”(paragraph 38) 17. The principles of law laid down in paragraph 36 of the judgment in Karnataka State Financial Corporation –v- N. Narasimahaiah and Ors. : (2008) 5 SCC 176 are applicable in view of the preamble of the RTI Act as therein it has been held that a statute should be interpreted in a reasonable manner and Court must place itself in the chair of a reasonable legislator/author. The judgment of the Apex Court in Pramod Kumar Srivastava –v- Chairman, Bihar Public Service Commission, Patna and Ors. : (2004) 6 SCC 714 , relied on behalf of the Commission, is not applicable to the facts of the case as the preamble of the RTI Act makes all the difference. The judgment in Sahiti and others –v- Chancellor, Dr. N.T.R. University of Health Sciences and Ors. : (2009) 1 SCC 599 furthers the case of the petitioners as in paragraphs 36 and 37 of the said judgment it has been held that the Board should re-evaluate the answer books if the factual scenario so demands. 18. In the instant case, as the petitioners have questioned the method of examination or evaluation, in my view, the Commission cannot shirk its responsibility by denying re-examination or re-evaluation on the specious plea that similar competitive examinations conducted by the public authorities do not provide any method for holding re-examination or conducting re-evaluation of the answer scripts. 19. 18. In the instant case, as the petitioners have questioned the method of examination or evaluation, in my view, the Commission cannot shirk its responsibility by denying re-examination or re-evaluation on the specious plea that similar competitive examinations conducted by the public authorities do not provide any method for holding re-examination or conducting re-evaluation of the answer scripts. 19. In view of the above, the writ petitions are allowed by directing the West Bengal School Service Commission to re-examine or re-evaluate the answer scripts of the petitioners by examiners, other than by the examiners who had examined the answer scripts, within four weeks from the date of furnishing a copy of the certified copy of this order and thereafter, on the basis of the said reexamination or re-evaluation the Commission shall take steps in accordance with law. 20. There is an additional aspect in W.P. 15839(W) of 2012, wherein an application dated 23rd June, 2012 has been made before the Secretary, West Bengal School Service Commission, Northern Region, Malda seeking information regarding a candidate, a third party. Since such application has been filed seeking information under the RTI Act, the Secretary of the Commission of the said Region is directed to dispose of the same in accordance with the provisions contained in section 11 of the RTI Act after having a copy of the certified copy of this judgment. 21. After delivery of the aforesaid judgment, Mr. Abhijit Gangopadhyay, learned advocate appearing for the Commission, prays for stay of operation of the judgment and order. Prayer is considered and refused. 22. There will be no order as to costs. Urgent photostat certified copy of this order, if applied for, be furnished on priority basis.