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2013 DIGILAW 123 (CAL)

Pritikana Bhuin v. University of Burdwan

2013-03-01

PRASENJIT MANDAL

body2013
JUDGMENT Prasenjit Mandal, J. This application is at the instance of an unsuccessful candidate in Part-II 4th paper Physics honours from the University of Burdwan in the B.A. Part-II examination. In this paper the petitioner scored 9 marks only in the year 2008. The petitioner was successful in the B.A. Part-I examination, but, she was unsuccessful in respect of Part-II 4th paper Physics honours in the year 2008. In 2009 the petitioner appeared in the same subject and she scored low marks. Then in 2010 she sat for the Part-III papers along with Part-II 4th paper Physics honours and scored the same marks i.e. 9 only. She applied for review and on review, her marks in respect of that paper enhanced from 9 to 13 i.e. increase of 4 marks. The petitioner made a representation to the respondent university, but, there was no response. Then she filed a writ petition being W.P. No.15007 (W) of 2011 which was dismissed, but, liberty was given to the writ petitioner to approach the authority under the Right To Information Act, 2005. Thereafter, on getting the xerox copy of the answer sheet the petitioner filed another representation to the respondent university for re-evaluation of the answer script in question and, thereafter, this application has been preferred. Now, the question is whether the prayer for re-evaluation can be granted. Upon hearing the learned Counsel for the parties and on going through the materials on record, I find that on being unsuccessful in respect of Part-II 4th Paper, Physics honours scoring 9 marks only, the petitioner filed the W.P. No.15007 (W) of 2011 which was dismissed by this Hon’ble Court by the order dated January 29, 2011. Thereafter, on getting the copy of the answer script under the provisions of the Right To Information Act, pursuant to the observations passed by this Hon’ble Court in the earlier writ petition, the petitioner’s assessment was that she answered correctly, but, she was not awarded enough marks. So, this application has been filed for consideration of her representation already referred to above. So far as the question of re-evaluation on the basis of the representation of the petitioner is concerned, I find that in the earlier occasion the petitioner applied for review under the Rules of the respondent university and on such review 4 marks had been increased making total 13 in respect of the paper in question. So far as the question of re-evaluation on the basis of the representation of the petitioner is concerned, I find that in the earlier occasion the petitioner applied for review under the Rules of the respondent university and on such review 4 marks had been increased making total 13 in respect of the paper in question. The writ petitioner has therefore, availed herself of the opportunities as provided under the Rules of the respondent university. Thereafter, she filed another representation for reexamination of the answer script and, in fact, there is no Rule for re-examination. Mr. Bhaskar Prasad Banerjee, learned Advocate appearing for the petitioner has contended that the petitioner did well in the examination and so according to the doctrine of legitimate expectation as laid down in the case of Food Corporation of India v. M/s. Kamdhenu Cattle Feed Industries reported in (1993) 1 Supreme Court Cases 71, since the petitioner did well in the examination, her expectation was that, her answer script would be properly assessed and if it is not done properly the matter is open for judicial review and as such, the representation filed by the petitioner could be properly considered. In support of his contention Mr. Banerjee has drawn my attention to the answer script in respect of certain questions and the textbook on the matter in dispute as annexed to the application to show that the writ petitioner had answered correctly. Anyway, so far as examination of the answer script is concerned, the answer script had been examined by an expert over the subject and thereafter on an application for review, the review had been done by another expert on the subject and in the instant case, after the review, 4 marks had been increased. Such a review is nothing but, reexamination of the same. Since the petitioner has availed herself of the scope of review as permissible under the Rules of the respondent university, in my view there is no scope of granting the representation for further re-examination of the answer script in question. Mr. Banerjee has also contended that by a judgment dated October 10, 2010 in W.P. No.10377 (W) of 2012 one of the Judges of this Hon’ble Court directed re-examination of the answer script by a 3rd party. Taking the same analogy, the answer script of the writ petitioner may be examined by a 3rd party. Mr. Banerjee has also contended that by a judgment dated October 10, 2010 in W.P. No.10377 (W) of 2012 one of the Judges of this Hon’ble Court directed re-examination of the answer script by a 3rd party. Taking the same analogy, the answer script of the writ petitioner may be examined by a 3rd party. In this respect learned Counsel for the respondent university has vehemently raised objection that the said decision is not applicable in view of the fact that there is no provision for review or re-examination of the answer script of the examination conducted by the School Service Commission and as such, the direction for examination of the answer script by a 3rd party was given in the said decision. Mr. Banerjee has also referred to the decision of Chief Information Commissioner. V. State of Manipur reported in 2011- LAWS(SC)-12-16, thus, he has submitted that the petitioner has the right to get the answer script under the provisions of the R.T.I. Act and upon getting the answer script the petitioner is in belief that her answers are correct and so appropriate steps may be taken for appointment of another expert body at the cost of the petitioner. Since the Rules of the respondent university do not provide such a recourse for re-examination after review and since review is virtually nothing but reexamination, I am of the view that this decision will not be helpful to the writ petitioner. Mr. Banerjee has also referred to the decision dated February 1, 2012 passed in W.P. No.28298 (W) of 2012 by this Hon’ble Court and thus, he has submitted that one of the Judges of this Hon’ble Court directed for appointment of an expert in respect of the answer script, but, assistance from none of the expert in that field was sought for. Mr. S. Chakrobarty appearing for the respondent has contended that this decision is not applicable. The argument advanced by Mr. S. Chakrborty, appears to be convincing. In the instant case, since the petitioner has got the opportunity of review under the Rules of the respondent university, I am of the view that this decision will not be applicable. Mr. Mr. S. Chakrobarty appearing for the respondent has contended that this decision is not applicable. The argument advanced by Mr. S. Chakrborty, appears to be convincing. In the instant case, since the petitioner has got the opportunity of review under the Rules of the respondent university, I am of the view that this decision will not be applicable. Mr. Banerjee has also contended that the petitioner may be supplied with a xerox copy of a model answer in respect of the paper in question and if it is supplied or the model answer is produced before this Court, it would reveal that the petitioner has answered correctly. In this respect Mr. S. Chakraborty learned Advocate appearing for the Burdwan University has contended that the model answer script is not available or maintained in respect of higher studies like honours courses. There is no system of maintaining any model answer in the subject in question and as such, the question of comparison of model answer or supply the copy of the model answer for comparison does not/cannot arise at all. Having due respect to the submission of the learned Advocates of both the sides, I am of the view that since the Rules of the respondent university do not permit for further examination or reexamination of the answer script by an expert body as prayed for the prayer of the writ petitioner cannot be considered at all. The reliefs prayed for in the application being beyond the Rules of the respondent university, I am of the view that the prayer for reliefs cannot be granted. The petitioner filed another writ petition previously, which was dismissed giving the petitioner liberty to take appropriate steps under the provisions of the R.T.I. Act to get a xerox copy of the answer script to know how the marks had been assessed or what were wrongs and that might serve only as means for making good result or attempt to get more marks in the next examination or at least for better understanding of the matter. It does not mean that over the selfsame issue the petitioner would file another writ application renewing the same prayer. Accordingly, I am of the view that this application is bereft on merits and is, therefore, dismissed. Considering the circumstances, there will be no order as to costs. It does not mean that over the selfsame issue the petitioner would file another writ application renewing the same prayer. Accordingly, I am of the view that this application is bereft on merits and is, therefore, dismissed. Considering the circumstances, there will be no order as to costs. Urgent xerox certified copy of this order, if applied for, be supplied to the learned Advocates for the parties on their usual undertaking.