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2014 DIGILAW 1022 (KER)

Kiranlal M. v. High Court of Kerala

2014-12-09

P.B.SURESH KUMAR

body2014
JUDGMENT : P.B. Suresh Kumar, J. Petitioner has appeared for the Kerala Judicial Service Examination, 2013 for selection as Munsiff/Magistrate pursuant to a notification published by the High Court of Kerala. He seeks, in this writ petition, directions to the High Court of Kerala to revalue the papers of all the candidates in the said examination and prepare a fresh merit list. 2. The petitioner is an Advocate who has applied for selection as Munsiff/Magistrate, pursuant to the notification published by the High Court of Kerala on 21.3.2013. The selection as per the notification, consisted of a preliminary examination, a main examination and viva voce. As per the terms of the notification, only candidates who pass the preliminary examination will be called for the main examination and only candidates who secure 40% marks for each of the four papers in the main examination will be called for viva voce. The petitioner did not secure 40% marks in paper IV of the main examination and consequently, he was not called for the viva voce. According to the petitioner, though he has answered all the questions in paper IV correctly, the answers written by him were not valued properly by the examiners. It is pleaded by the petitioner in the writ petition that he should have been granted full marks or at least substantial marks for questions 24, 25 and 31, whereas he was given only 1 mark out of 5 for question No.24, 3 marks out of 5 for question No.25 and 3 out of 15 marks for question No.31. The petitioner also refers to question No.18 in paper IV. The case of the petitioner in relation to that question is that the said question consisted of two parts, of which, only one part was valued by the examiner concerned. It is also alleged by the petitioner in the writ petition that when the valuation of the answer sheets was completed, sufficient number of candidates did not qualify for the viva voce examination and consequently at the instance of the High Court, the answer sheets of some of the candidates in the main examination were revalued and they were awarded 40% marks to make them eligible to be called for the viva voce. It is on the basis of the aforesaid averments, the petitioner seeks direction to revalue the answer sheets of all the candidates who appeared for the said examination. It is on the basis of the aforesaid averments, the petitioner seeks direction to revalue the answer sheets of all the candidates who appeared for the said examination. 3. A counter affidavit has been filed by the High Court in this matter. It is asserted in the counter affidavit that there was no error at all in the valuation of the answer sheets of the candidates appeared for the examination and that the selection process was not vitiated in any manner whatsoever. The averment in the writ petition that question Nos.24, 25 and 31 in paper IV of the main examination written by the petitioner have not been valued properly is denied in the counter affidavit. The stand taken in the counter affidavit in relation to the answers given by the petitioner is that he has been awarded the marks which he deserved. As regards question No.18, it is stated in the counter affidavit that during the centralised valuation, the answer sheets were distributed in such a way that the answers written by the candidates to a particular set of questions are valued by the same evaluator so as to avoid subjectivity in valuation. It is explained in the counter affidavit that certain questions had two parts and some evaluators assigned marks to both parts of the answer separately, while some others assigned aggregate marks for both parts together. It is also stated in the counter affidavit that the evaluator who valued question No.18 of the petitioner had awarded aggregate marks and therefore, there is no irregularity or omission in the valuation of the answer written by the petitioner for question No.18. The allegation of the petitioner that after the completion of the valuation process, the evaluators were recalled and instructed to revalue the answer sheets of some of the candidates, is denied in the counter affidavit. 4. I have considered the rival submissions made by the learned counsel for the parties and perused the records. 5. The learned counsel for the petitioner brought to my notice the answers given by the petitioner for question Nos.24, 25 and 31 and contended that there is gross negligence on the part of the evaluator in evaluating the answers written by him to those questions. 5. The learned counsel for the petitioner brought to my notice the answers given by the petitioner for question Nos.24, 25 and 31 and contended that there is gross negligence on the part of the evaluator in evaluating the answers written by him to those questions. According to him, even though there is no provision for revaluation of the answer sheets of the candidates appeared for the examination, if this Court finds that there is gross negligence in evaluating the answers given by the candidates, revaluation of the answer sheets of the candidates can be ordered, in exercise of the powers under Article 226 of the Constitution of India. He has relied on the decision of the Madhya Pradesh High Court in Priyanka Pandey v. Secretary, Board of Secondary Education ( AIR 2007 MP 235 ) in support of the said contention. 6. Per contra, the learned counsel for the High Court pointed out that the notification does not provide for revaluation of the answer sheets of the candidates and as such the petitioner cannot claim revaluation. He has also pointed out that the petitioner has not established that there was negligence on the part of the High Court in the evaluation of the answer sheets of the candidates appeared for the examination and therefore, there is no question of revaluation of the answer sheets arises under any circumstances. The allegation of the petitioner that after the completion of the valuation process, the evaluators were recalled and instructed to revalue the answer sheets of some of the candidates, is denied in the counter affidavit. The petitioner has not placed any materials to establish the said case pleaded in the writ petition. 7. It is settled that in the absence of any provision for revaluation of answer sheets in the relevant rules, no candidate in an examination has any right whatsoever to claim or ask for a revaluation of his answer sheets. (See the decisions of the Apex Court in (1) Pramod Kumar Srivastava v. Bihar Public Service Commission [ (2004) 6 SCC 714 ], (2) Muneeb-Ul-Rehman Haroon (Dr.) v. Govt. (See the decisions of the Apex Court in (1) Pramod Kumar Srivastava v. Bihar Public Service Commission [ (2004) 6 SCC 714 ], (2) Muneeb-Ul-Rehman Haroon (Dr.) v. Govt. of J&K State [ (1984) 4 SCC 24 ], (3) Board of Secondary Education v. Pravas Ranjan Panda [ (2004) 13 SCC 383 ], (4) Board of Secondary Education v. D.Suvankar [ (2007) 1 SCC 603 ], (5) W.B.Council of Higher Secondary Education v. Ayan Das [ (2007) 8 SCC 242 ] and (6) Sahiti v. Dr.N.T.R. University of Health Sciences [ (2009)1 SCC 599 ]). In the case on hand, it is conceded that the notification does not provide for revaluation of the answer sheets of the candidates. There is also no challenge in the writ petition against the said policy of the High Court in not providing for revaluation of the answer sheets of the candidates. As such, in the light of the various decisions of the Apex Court referred to above, the petitioner cannot seek directions to revalue the answer sheets of the candidates appeared for the examination. 8. As noticed above, the case of the petitioner is that the valuation of his answer sheets has been unfair and unjust and therefore, this Court can order revaluation, in exercise of the power under Article 226 of the Constitution of India. The principles summarised by the Madhya Pradesh High Court in Priyanka Pandey v. Secretary, Board of Secondary Education (supra) are the following : "(a) A student has no right to seek revaluation of an answer script unless the rules governing the examination specifically provide the revaluation. A provision for 'scrutiny' or 're-totaling' of marks or 'rechecking the results' in the Rules does not entitle a student to seek revaluation. (b) Where the rules do not provide for revaluation, the High Court will not normally direct the production of the answer scripts for its scrutiny or order revaluation. But in rare and exceptional cases where mala fides or tampering is made out, or where injustice has been caused on account of gross negligence, the Court may direct revaluation in exercise of its jurisdiction under Article 226 of the Constitution. (c) Ascertainment of mala fides and tampering depends on facts of the case and for that purpose, if necessary, the answer script may be summoned. (d) Ascertainment of "gross negligence resulting in injustice" is a more difficult exercise. (c) Ascertainment of mala fides and tampering depends on facts of the case and for that purpose, if necessary, the answer script may be summoned. (d) Ascertainment of "gross negligence resulting in injustice" is a more difficult exercise. A student who has consistently secured very high marks in a subject in the last few years examinations, is shown to have failed in such subject, the Court may consider it to be prima facie evidence of such negligence and call for the answer scripts. (The mere fact that a student feels that he deserved more marks or alleges negligence, cannot be ground to call for answer scripts). On securing the answer script, the Court may examine it or take the assistance of a qualified teacher to examine it. If the Court finds any gross negligence resulting in injustice which shocks its judicial conscience it may direct revaluation. (e) But change in marks on account of perceptional differences in assessment cannot be a ground for revaluation. Different examiners may evaluate the same answers differently resulting in lesser or higher marks being awarded. Revaluation is not to be ordered merely because another valuer is of the view that the marks should have been different. In traditional examinations where the purpose is to test the knowledge, grammar, logic or reasoning, the perceptions about the answers may vary from examiner to examiner. (Of course where the examination is of objective type, where the student is merely to mark 'yes' or 'no', or choose one of the multiple answers, there cannot be any difference in valuation). (f) While fairness in examinations is impliedly assured by the Board, exactness in valuation in individual cases can neither be assured nor be claimed. Certain margin of human error, oversight, and perceptional difference is part of the valuation system, where thousands or lacs of answer scripts are evaluated by hundreds or thousands of evaluators. Therefore, even where the Court secures the answer script and examines it or gets it examined by an independent teachers, revaluation should not be ordered merely because there is some difference in valuation or because one or two answers have not been valued or have been wrongly valued. Therefore, even where the Court secures the answer script and examines it or gets it examined by an independent teachers, revaluation should not be ordered merely because there is some difference in valuation or because one or two answers have not been valued or have been wrongly valued. To repeat, mala fides tampering or gross negligence (and not small or negligible errors or perceptional changes) is a condition precedent for ordering revaluation." True, the Madhya Pradesh High Court has held that where the rules do not provide for revaluation, in rare and exceptional cases, where injustice has been caused on account of gross negligence, the Court may direct revaluation, in exercise of its jurisdiction under Article 226 of the Constitution of India. The question therefore, is as to whether the case on hand is a rare and exceptional case where this Court has to order revaluation, in exercise of the power under Article 226 of the Constitution of India. It is seen from the materials on record that the answer sheets of the petitioner have been valued by the evaluators. The case of the petitioner is only that going by the answers written by him, he should have been given more marks than what is given to him by the evaluators. In other words, the petitioner feels that he deserved more marks than what is given to him. In H.P. Public Service Commission v. Mukesh Thakur, (2010) 6 SCC 759 , the Apex Court held that it is not permissible for the High Court to examine the questions and the answers written by the candidates to ascertain whether the evaluation of the answers has been fair or not. Paragraph 20 of the judgment of the Apex Court reads thus: "20. In view of the above, it was not permissible for the High Court to examine the question papers and answer sheets itself, particularly, when the Commission had assessed the inter se merit of the candidates. If there was a discrepancy in framing the question or evaluation of the answer, it could be for all the candidates appearing for the examination and not for Respondent 1 only. It is a matter of chance that the High Court was examining the answer sheets relating to Law. If there was a discrepancy in framing the question or evaluation of the answer, it could be for all the candidates appearing for the examination and not for Respondent 1 only. It is a matter of chance that the High Court was examining the answer sheets relating to Law. Had it been other subjects like Physics, Chemistry and Mathematics, we are unable to understand as to whether such a course could have been adopted by the High Court. Therefore, we are of the considered opinion that such a course was not permissible to the High Court." H.P. Public Service Commission v. Mukesh Thakur (supra) is also a case relating to the selection of Judicial Officers. Further, the counter affidavit filed by the High Court in this case indicates that the answer sheets were distributed to the evaluators in such a way that the answers written by the candidates to a particular question is valued only by the same evaluator. If that was the case, as observed by the Apex Court, if at all there was any shortfall in the evaluation of the answer sheets on account of the perceptional difference in the assessment of a particular evaluator, the same would have been the situation in the case of all the candidates appeared for the examination. In Priyanka Pandey v. Secretary, Board of Secondary Education (supra), it is clarified that the mere fact that a student feels that he deserved more marks is not sufficient for the Court to treat the case as a case of gross negligence resulting in injustice to order revaluation of the answer sheets. It is also clarified in that case that change in the marks on account of perceptional differences in assessment cannot also be a ground for revaluation. While fairness in examinations is to be assured, exactness in valuation in individual cases can neither be assured nor be claimed. A certain margin of human error, oversight and perceptional difference are part of the value system, where a large number of candidates had undertaken examination. As such, the contention of the petitioner that he should have been granted more marks than what was awarded to him by the evaluator is liable to be rejected. 9. A certain margin of human error, oversight and perceptional difference are part of the value system, where a large number of candidates had undertaken examination. As such, the contention of the petitioner that he should have been granted more marks than what was awarded to him by the evaluator is liable to be rejected. 9. Negligence is the breach of a duty caused by omission to do something which a reasonable man, guided upon those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do. Perceptional change in the assessment cannot be reckoned as negligence to order revaluation. Negligence justifying interference by the Court, in exercise of the jurisdiction under Article 226 of the Constitution of India to order revaluation of the answer sheets of the candidates in an examination shall be careless conduct involving a breach of duty. There is nothing on record to indicate that the High Court was guilty of careless conduct, much less careless conduct involving a breach of duty, in the evaluation of the answer sheets of the candidates who appeared for the examination. As such, the decision of the Madhya Pradesh High Court in Priyanka Pandey v. Secretary, Board of Secondary Education (supra) may not have any application. In the result, there is no merit in the writ petition and the same is, accordingly, dismissed.