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2018 DIGILAW 248 (GAU)

Drishti Baruah v. State of Assam

2018-02-08

NELSON SAILO, UJJAL BHUYAN

body2018
ORDER : Ujjal Bhuyan, J. 1. Heard Mr. S.N. Sharma, learned Senior counsel, assisted by Mr. K. Kalita, learned counsel for the petitioner and Mr. T.C. Chutia, learned Standing Counsel, Board of Secondary Education, Assam (SEBA). This writ petition has been placed before us in the Division Bench pursuant to an administrative order of Hon'ble the Chief Justice dated 29.01.2018 following order dated 19.01.2018 passed by the learned Single Judge. 2. By filing this petition under Article 226 of the Constitution of India, petitioner seeks declaration of Regulation 48 of the Regulations for Conduct of Examinations of the Board, 2016 (Examination Regulations) as ultra-vires; quashing of the decision of the Controller of Examinations, SEBA dated 25.09.2017 rejecting the prayer of the petitioner for re-evaluation of the answer-scripts and for a direction to the respondents in SEBA for re-evaluation of the answer-scripts of General Science and Hindi (MIL) papers of the High School Leaving Certificate (HSLC) Examination, 2017. 3. Petitioner being a minor is represented by her natural guardian, i.e., her mother. 4. Case of the petitioner is that she had appeared in the HSLC examination, 2017 conducted by SEBA from the St. Mary's Higher Secondary School, Guwahati. According to the petitioner, going by her past academic performance in the school as well as her participation in educational activities outside the State, she was expecting that her name would figure within the top-10 positions in the said examination. 5. Be it stated that she appeared in the said examination held in February, 2017 bearing Roll-B 17-852 No. 0096 from St. Mary's Higher Secondary School, Guwahati. The subjects of the petitioner were English, General Mathematics, Advance Mathematics, Social Science, Hindi and General Science. Results were declared on 31.05.2017 and from the result-sheet, petitioner could come to know that she had secured 560 marks out of 600. In so far subjects of English, General Mathematics and Advance Mathematics are concerned, she had secured 100% marks, i.e., 300 out of 300. In Social Science, she secured 99 out of 100. However, in Hindi, she secured only 75 marks out of 100 whereas in General Science, she secured only 66 out of 80 in theory and total marks of 86 out of 100. 6. In Social Science, she secured 99 out of 100. However, in Hindi, she secured only 75 marks out of 100 whereas in General Science, she secured only 66 out of 80 in theory and total marks of 86 out of 100. 6. Because of the relatively lower marks awarded to the petitioner in Hindi and General Science, her overall percentage of marks came down drastically and consequently she did not get the result as was expected not only by herself or by her parents but by the school authorities as well as by her teachers and friends. 7. Petitioner applied for photocopy of the answer-scripts of the two subjects before the SEBA which were provided to her. On going through the answer-scripts, petitioner noticed that the examiners had not followed the Memorandum of Instruction prepared by SEBA which the examiner is required to follow while evaluating the answer-scripts. However, SEBA declined to change the marks awarded to the petitioner in Hindi and General Science. 8. Father submitted representation dated 27.06.2017 for proper evaluation of the answer-scripts of the petitioner in the said two subjects. SEBA authorities informed the father vide letter dated 25.09.2017 that the answer-scripts of the petitioner were examined by the Subject Experts and those were found to be in order. Father was also informed that there is no provision for re-evaluation of answer-scripts. 9. It was at that stage that the present writ petition came to be filed. 10. In the writ petition, petitioner has highlighted non-awarding of marks or inadequate awarding of marks in the two subjects having regard to the Memorandum of Instructions. Specific instances have been mentioned in paragraph-12 of the writ petition. 11. Initially, matter was before the Single Bench. Notice in this case was issued on 10.10.2017 to respondent Nos. 1 to 3 only with an interim direction that if answer-scripts of the petitioner were not destroyed in the meanwhile, those should be preserved. Mr. Chutia, however, submits that before the interim order was passed by the Single Bench on 10.10.2017, the answer-scripts were destroyed because as per the SEBA Regulations, answer-scripts are required to be preserved for four months only. 12. On a subsequent date, i.e., on 19.01.2018, Single Bench noticed that one of the prayers made in the writ petition was for declaration of Regulation 48 of the Examination Regulations as ultra vires. 12. On a subsequent date, i.e., on 19.01.2018, Single Bench noticed that one of the prayers made in the writ petition was for declaration of Regulation 48 of the Examination Regulations as ultra vires. Having regard to the administrative procedure followed in the Court that when vires of a statute is challenged, matter should be heard by a Division Bench, Single Bench by order dated 19.01.2018 directed placing of the case before Hon'ble the Chief Justice on the administrative side for necessary order. Thereafter, administrative order was passed as alluded to hereinabove following which the matter is before us in the Division Bench. 13. Respondent Nos. 2 and 3 have filed a common affidavit opposing the prayer made by the petitioner. It is stated that under the provisions of the Assam Secondary Education Act, 1961, SEBA has been constituted conferring power on the SEBA to frame Regulations for conduct of HSLC and other public examinations. It is stated that in the HSLC examination of 2017, a total of 3,72,640 candidates had appeared. Results were declared on 31.05.2017. Petitioner had secured 560 out of 600 marks, i.e., distinction with letter marks in four subjects. On application filed by the petitioner, answer-scripts of the subjects of Hindi and General Science were re-evaluated by the Examiners, Scrutinisers and Head of Examiners and no change in the award of marks was found warranted. The Examiners, Scrutinisers and Head of Examiners are experienced teachers and there is no mala fide intention on the part of SEBA to deny due marks to any candidate. Referring to Regulation 48 of the Examination Regulations, it is stated that re-examination does not mean re-evaluation. Memorandum of Instruction is a set of instructions to the examiners which is required to be borne in mind while evaluating answer-scripts. This was informed to the father on 25.09.2017. It is stated that it is humanly not possible to preserve the answer-scripts of 3,72,640 candidates for an indefinite period. Petitioner's expectation of high marks in the two subjects is her own assessment and may not match the assessment of the examiners. 14. Detailed submissions were made when the case was heard at length on 02.02.2018. 15. From the pleadings and submissions made, we find that there are two issues in the writ petition. Petitioner's expectation of high marks in the two subjects is her own assessment and may not match the assessment of the examiners. 14. Detailed submissions were made when the case was heard at length on 02.02.2018. 15. From the pleadings and submissions made, we find that there are two issues in the writ petition. The first issue is constitutionality of Regulation 48 of the Examination Regulations and the second issue is grievance of the petitioner regarding award of lesser marks in the subjects of Hindi and General Science ignoring the Memorandum of Instructions. 16. We shall address the first issue first. 17. To appreciate the submissions made, let us extract Regulation 48 of the Examination Regulations, as quoted in the writ petition, which is as under:- "48. Re-Examination:- A candidate may apply for re-examination of scripts to a maximum of 5(five) papers or 3 (three) subjects by paying necessary fees as determined by the Board and within such time as fixed by the Board from time to time provided that - (a) Re-examination shall not mean revaluation of the scripts. Re-examination shall consist of re-totaling of marks awarded by the examiner; and/or, (b) Assessment of answer(s) which has/have been left out unevaluated; and/or (c) Correction of wrong entry of marks of any manner/nature." 18. We find that Regulation 48, as extracted above, has undergone some change following framing of the Examination Regulations in 2016. Now, it has been re-numbered as Regulation 47 and the entire Regulation 47 is extracted hereunder:- "47. Re-Checking:- A candidate may apply for re-checking of answer books to a maximum of 3 (three) papers by paying necessary fees as determined by the Board and within such time as fixed by the Board from time to time provided that- (a) Re-checking shall not mean re-valuation of the answer books. Re-checking shall consist of re-totaling of marks awarded by the examiner, and/or, (b) Assessment of answer(s) which has/have been left out unevaluated, and/or (c) Correction of wrong entry of marks of any manner/nature. (d) The re-checking of answer books shall be done by persons of the status of Head Examiner/Senior Examiner who will be selected by the Secretary with the approval of the Chairman. After re-checking, the answer books together with the findings of the person(s) appointed for the purpose will be returned to the Controller of Examinations for necessary action. (d) The re-checking of answer books shall be done by persons of the status of Head Examiner/Senior Examiner who will be selected by the Secretary with the approval of the Chairman. After re-checking, the answer books together with the findings of the person(s) appointed for the purpose will be returned to the Controller of Examinations for necessary action. (e) Marks obtained by a candidate as a result of the re-checking shall be final. (f) The result of re-checking shall be communicated through the Head of the Institution within the shortest possible time from the last date fixed for submission of application for re-checking. (g) For providing photocopies of answer books after declaration of re-checking results, separate guidelines shall be issued by the Board." 19. From the arguments, what transpires is that the basic grievance of the petitioner pertains to Sub-Clause (a) of the Regulations, whether it is 48 or 47, because substance of the provision is the same i.e., re-examination would not mean revaluation of the answer-scripts. It would consist of re-totaling of marks awarded by the examiner or assessment of answers left unevaluated or correction of wrong entry of marks in any manner. 20. It is trite that when a challenge as to the constitutionality of a provision is made, it must be backed by adequate pleadings. In the writ petition, we find that only two paragraphs are dedicated on the question of constitutionality of Regulation 48, i.e., paragraph 16 and paragraph 17. In paragraph 16, it is stated that this provisions is illegal, unreasonable and violative of the provisions of the Constitution as the same has deprived a candidate from his legitimate entitlement of re-evaluation of the answer-script which is not in conformity with the recent decision of the Central Board of Secondary Education following a decision by the Delhi High Court. In paragraph 17, it is stated that Regulation 48 is bad in law inasmuch as in several cases, due to gross negligent and irresponsible manner of evaluation of the answer scripts by the examiner, a candidate had to suffer serious prejudice, including jeopardizing of academic career. Exclusion of re-evaluation from the scheme of re-examination is not justified. 21. We are afraid; on the basis of such inadequate pleadings, constitutionality of a provision can be adjudicated upon. In the absence of basic pleadings, constitutionality of a provision cannot be gone into. Exclusion of re-evaluation from the scheme of re-examination is not justified. 21. We are afraid; on the basis of such inadequate pleadings, constitutionality of a provision can be adjudicated upon. In the absence of basic pleadings, constitutionality of a provision cannot be gone into. One who challenges such a provision has to show/explain as to how the provision is unconstitutional or ultra-vires the parent Act. Mere saying that it is bad in law or that it is illegal and unreasonable is not enough. 22. In Mridupaban Das v. SEBA, WP (C) No. 7577/2015 decided on 11.07.2016, a Single Bench of this Court had noticed the statutory character of the Examination Regulations. Reference was made to Section 24(1) and (2) (a to m) of the Assam Secondary Education Act, 1961 whereafter it was observed that the Examination Regulations are statutory Regulations governing SEBA in the conduct of examinations. Section 3(a) of the Assam Secondary Education Act, 1961 defines the Board to mean SEBA established under the said Act. Though other provisions of the aforesaid Act may not have much relevance to the issue in hand, we may draw our attention to Section 24 of the said Act which deals with the power of the Board to make Regulations. Sub-Section (1) says that Board, i.e., SEBA may make Regulations for the purpose of carrying out the provisions of the Act. As per Sub- Section (2), SEBA may make Regulations providing for all or any of the matters mentioned therein including conducting of examinations and publishing of results. Therefore, it has rightly been held in Mridupaban Das (supra) that the Examination Regulations are statutory Regulations framed under the provisions of the Assam Secondary Education Act, 1961. 23. In so far Regulation 48 is concerned, we do not find anything in the said Regulation which goes beyond the framework of the parent Act. Undoubtedly, Examination Regulations is a subordinate piece of legislation and cannot go beyond the terms of the parent Act As observed above, we do not find anything in Regulation 48 to even remotely suggest that the said provision has provisions beyond the parent Act i.e., the Assam Secondary Education Act, 1961. 24. We have already indicated the sketchy or the rather complete lack of pleadings in support of the challenge to the vires of Regulation 48. 24. We have already indicated the sketchy or the rather complete lack of pleadings in support of the challenge to the vires of Regulation 48. In so far re-evaluation of answer scripts is concerned, Maharashtra State Board of Secondary and Higher Secondary Education v. Paritosh Bhupesh Kumar Seth, (1984) 4 SCC 27 , is the leading case on the subject. In that case, challenge was made to Regulation 104 of the Maharashtra Secondary and Higher Secondary Education Boards Regulations, 1977 (Maharashtra Regulations) which also excluded re-evaluation from the purview of reexamination. Regulation 104 of the Maharashtra Regulations is extracted hereunder:- "104. Verification of marks obtained by a candidate in a subject - (1) Any candidate who has appeared at the Higher Secondary Certificate examination may apply to the Divisional Secretary for verification of marks in any particular subject. The verification will be restricted to checking whether all the answers have been examined and that there has been no mistake in the totaling of marks for each question in that subject and transferring marks correctly on the first cover page of the answer book and whether the supplements attached to the answer book mentioned by the candidate are intact. No revaluation of the answer book or supplements shall be done. (2) Such an application must be made by the candidate through the head of the junior college which presented him for the examination, within two weeks of the declaration of the examination results and must be accompanied by a fee of Rs. 10 for each subject. (3) No candidate shall claim, or be entitled to revaluation of his answers or disclosure or inspection of the answer books or other documents as these are treated by the Divisional Board as most confidential." 25. The question before the Supreme Court was as to whether under the law, a candidate has a right to demand an inspection, verification and revaluation of answer-books and whether the statutory regulations framed by the Maharashtra State Board of Secondary and Higher Secondary Education governing the subject insofar as they categorically state that there shall be no such right can be said to be ultra vires, unreasonable and void. On the validity of the Regulations, Supreme Court categorically declared that those were not illegal or unreasonable or ultra vires the rule making power conferred by the statute i.e., the Maharashtra Secondary and Higher Secondary Boards Act, 1965, more particularly Section 36 thereof which is similar to the provisions contained in Section 24 of the Assam Secondary Education Act, 1961. 26. In view of such categorical finding by the Supreme Court, we do not feel that it would be necessary for us to enter into a long drawn debate on the validity of the said Regulation. We accordingly hold that Regulation 48 of the Examination Regulations does not suffer from any unreasonableness or illegality and cannot be said to be ultra vires. 27. Proceeding to the second grievance of the petitioner, we had initially thought of remanding the matter back to the learned Single Judge for decision since subject-matter of the litigation is one which is to be decided by the Single Bench. However, we feel that having entered into the debate and after hearing the matter at length, it may not be just and proper to remand the matter back to the Single Bench for adjudicating on this limited issue. 28. Before we deal with the grievance made, we may also note that as per Regulation 51 of the earlier Examination Regulations, SEBA was conferred with the power of relaxing any of the provisions of the Regulations to deal with a case in a just and equitable manner if it was specified that operation of any of the Regulations had caused hardship in any particular case. However, under the Examination Regulations, 2016, the said provision finds place in Regulation 50 in an identical manner. 29. We find from the documents which have been placed before us that SEBA issued Memorandum of Instructions to the examiners entrusted with examination of the answer-scripts of individual subjects. At page 138 of the writ petition is a Memorandum of Instruction regarding evaluation of the subject General Science. Amongst others, it says that full marks be awarded for correct answers and partial marks be awarded in case of incomplete or partially correct answers. Mr. At page 138 of the writ petition is a Memorandum of Instruction regarding evaluation of the subject General Science. Amongst others, it says that full marks be awarded for correct answers and partial marks be awarded in case of incomplete or partially correct answers. Mr. Sharma, learned Senior counsel in his arguments had pointed to a number of answers given by the petitioner for which at least partial marks ought to have been awarded but not awarded which according to him would have made a material difference to the overall result of the petitioner. 30. We have applied our mind to this aspect of the matter but we have deliberately refrained from mentioning the questions which have been left out unevaluated. 31. That being the position, we direct respondent Nos. 2 and 3 to re-examine the answer-scripts of the petitioner in respect of Hindi and General Science subjects of the HSLC examination, 2017 within the parameters of Regulation 48 or 47 of the Examination Regulations, as the case may be. While carrying out the said exercise, if it is felt that the relaxation clause under Regulation 51 or 50, as the case may be, is required to be invoked, SEBA may consider invoking the same. Beyond this, we express no opinion. 32. Let the above exercise be carried out within a period of 6 weeks from the date of receipt of a certified copy of this order with intimation to the petitioner. Writ petition is accordingly disposed of. No costs.