Research › Search › Judgment

Calcutta High Court · body

2016 DIGILAW 502 (CAL)

Akib Mondal v. State of West Bengal

2016-06-23

TAPABRATA CHAKRABORTY

body2016
JUDGMENT : 1. Shorn of unnecessary details the facts are that the petitioner appeared in the 10th Level Madrasah Examination, 2015 (hereinafter referred to as the said examination) conducted by the West Bengal Board of Madrasah Education (hereinafter referred to as the said Board). The examination was held in the month of February, 2015. The results were published on 18th May, 2015. From the mark sheet the petitioner came to learn that he obtained 68 marks in Bengali, 77 marks in English, 73 marks in Mathematics, 81 marks in Physical Science and 65 marks in History. Along with such written test marks the marks towards oral/project/practical was added and in all the said subjects he was given 10 marks in such oral/project/practical test. After receiving the mark sheet the petitioner was not satisfied of the marks given and as such he made an application to the respondent no.3 for re-valuation on 14th October, 2015 and in reply the petitioner was informed by a letter dated 17th December, 2015 that the Board does not have any provision to evaluate the answer scripts after PPR / PPS. In the midst thereof the petitioner applied for Post Publication Review in the subjects of Bengali, Mathematics and History and it was reported on 5th August, 2015 that there is no change in the marks. Thereafter, the petitioner also made applications under the Right to Information Act, 2005 asking for supply of xerox copies of the answer scripts in the four subjects and the petitioner was handed over the same. From the answer scripts the petitioner came to learn that his marks in all the said four subjects were reduced. In the subject of Bengali he was initially given 72 marks which was curtailed to 68 marks. In the subject of History he was initially given 67 marks which was curtailed to 65 marks. In the subject of Mathematics he was given 78 marks which was curtailed to 73 marks and in the subject of Physical Science he was given 88 marks which was curtailed to 81 marks. 2. Mr. Pal, learned advocate appearing for the petitioner submits that under the provisions of the West Bengal Board of Madrasah Education Act, 1994 (hereinafter referred to as the said Act of 1994) there is no provision for re-checking. 2. Mr. Pal, learned advocate appearing for the petitioner submits that under the provisions of the West Bengal Board of Madrasah Education Act, 1994 (hereinafter referred to as the said Act of 1994) there is no provision for re-checking. In support of such contention, he has drawn the attention of this Court to Sections 18, 19 and 20 of the said Act of 1994. 3. According to him the fact that there is no such provision towards re-checking stands admitted by the respondents in as much as the respondent no.3 himself in the letter dated 17th December, 2015 has stated that apart from PPR / PPS the Board does not have any provision to evaluate the answer scripts. In the absence of any authority to re-check the answer scripts the said Board and the examination committee could not have rechecked the petitioner’s answer scripts prior to publication of the results. 4. He has also placed before this Court a downloaded document from the website of the said Board in support of his contention that the Board had extended PPR and PPS facilities both to the pass and fail examinees and that there was nothing in the said website publication to show that re-checking of answer scripts was permissible. 5. Per contra, Mr. Panja, learned senior counsel appearing for the respondent nos.2 and 3 submits that a policy decision was adopted by the authorities to re-check the top-50 (fifty) scripts of high Madrasah, Alim and Fazil Examination before publication of result. The reason behind such decision was to minimize the chances of change of marks among the toppers after PPR/PPS. Such decision was thereafter placed in the meeting of the said Board held on 12th May, 2015 and the Board approved the resolution of the examination committee. In support of such contention, a resolution of the examination committee dated 7th April, 2015 and a resolution of the Board dated 12th May, 2015 have been placed before this Court though the same have not been annexed to the affidavit-in-opposition. Let copies of the said resolutions be kept on record. 6. Placing reliance upon the said two resolutions and drawing the attention of this Court to Section 19(3)(c) of the said Act, Mr. Let copies of the said resolutions be kept on record. 6. Placing reliance upon the said two resolutions and drawing the attention of this Court to Section 19(3)(c) of the said Act, Mr. Panja submits that respondents had the authority to re-check the papers and that in the absence of appropriate pleading in the writ application to the effect that the implementation of such policy decision was arbitrary in nature, the manner of implementation of such policy decision cannot be questioned. 7. Mr. Panja has also placed before this Court the answer scripts of the petitioner and has made an endeavour to point out that there was no infirmity in rechecking of the papers inasmuch as in some questions the marks of the petitioner were increased though in totality there had been a curtailment of the marks which was initially obtained by the petitioner and as examined by the examiners appointed by the said Board. In support of such contention and to show that such rechecking was without any malice reliance has also been placed upon the results of such re-checking in respect of the first 50(fifty) candidates and it has been submitted that in respect of some candidates the marks was increased and in respect of others the marks was decreased and that in the event, the Court interferes at this stage, the same would open a floodgate of litigation pertaining to the examination. 8. In reply, Mr. Pal submits that approval of a mere proposal given by the President of the said examination committee cannot be construed to be a policy decision. Though the Board has the power to frame regulations for conducting a particular examination, no such regulation has been framed and no advice pertaining to re-checking was sought for from the examination committee. Furthermore, the proposal of the President is contained in a resolution dated 7th April, 2015 whereas the examinations were completed prior thereto and as such the said resolution could not have been applied in respect of the candidates, including the petitioner. 9. Drawing the attention of this Court to page 21 of the writ application, Mr. Pal has also pointed out that though upon re-checking it was incorporated in the first page of the respective answer scripts that there is “no change” surprisingly the marks in all the subjects have been curtailed. 10. 9. Drawing the attention of this Court to page 21 of the writ application, Mr. Pal has also pointed out that though upon re-checking it was incorporated in the first page of the respective answer scripts that there is “no change” surprisingly the marks in all the subjects have been curtailed. 10. I have heard the learned advocates appearing for the respective parties and I have considered the materials on record. 11. A policy decision is a decision to be adopted upon much deliberation and upon examination and consideration of the reasons for and against a choice. The word ‘consider’ is of a great significance. Its dictionary meaning is “to think over”, “to regard as” or “to deemed to be”. Hence, there is a clear connotation to the effect that there must be active application of mind. In other words the term ‘consider’ postulates consideration of relevant aspects of matter. Thus, formation of opinion by the statutory authority should reflect intense application of mind with reference to the materials available on record. A mere proposal given by the President of the examination committee towards re-checking and the subsequent approval of the same by the Board without any deliberation and reasoning cannot be construed to be a policy decision. 12. A perusal of the provisions of Section 20 of the said Act would reveal that authority has been conferred upon the Board to frame regulations after considering recommendation of the examination committee but no such regulation has been framed. 13. Mr. Panja, has argued that Section 19(3)(c) of the said Act specifies that it shall be the duty of the examination committee to advise the board on any other matter, apart from the matters specified under Clauses (a) and (b), relating to such examination and that accordingly it cannot be said that the decision towards re-checking was without jurisdiction. Such contention of Mr. Panja is not acceptable to this Court. No advice as regards introduction of any provision towards re-checking was sought for by the Board. It is a fundamental principle that a statutory authority is not empowered to do anything unless those powers are conferred on such authority by the statute, which creates it. Such contention of Mr. Panja is not acceptable to this Court. No advice as regards introduction of any provision towards re-checking was sought for by the Board. It is a fundamental principle that a statutory authority is not empowered to do anything unless those powers are conferred on such authority by the statute, which creates it. No record has been produced to show that in conscious application of the power conferred under the statute the appropriate authority did take a decision prior to holding the examination to apply a method of re-checking in respect of the first 50 (fifty) candidates, being the toppers in the said examination. 14. The respondents also could not explain to this Court as to why such a decision was restricted to the first fifty students when more than 60,000 students appeared in the said examination. Furthermore, the purported resolution of the examination committee was adopted on 7th April, 2015 and the same could not have been applicable in respect of the candidates, including the petitioner, who had completed the examination prior thereto. Thus, the introduction of the process of rechecking of answer scripts suffers from the vices of unreasonableness and arbitrariness. The argument of Mr. Panja to the effect that any interference at this stage would open a floodgate is also not acceptable to this Court. The same appears to be an argument of desperation. Only because, there is a possibility of floodgate litigation, the valuable right of the petitioner cannot be permitted to be taken away. 15. Accordingly, this Court holds that the authorities had no jurisdiction to re-check the answer scripts of the petitioner prior to publication of the mark sheet and the act of curtailment of marks upon such re-checking is absolutely arbitrary and illegal. 16. For the reasons discussed above, this Court directs the respondents, particularly the respondent nos.2 and 3 to issue a fresh mark sheet in favour of the petitioner incorporating the marks of written test which were initially obtained by the petitioner in the respective subjects upon participating in the examination and prior to re-checking, within a period of four weeks from the date of communication of this order. 17. With the above observations and directions, the writ application is disposed of. 18. Urgent certified photocopy of this order, if applied for, be supplied to parties as expeditiously as possible.