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Madhya Pradesh High Court · body

2019 DIGILAW 175 (MP)

Radha Sharma v. Board of Secondary Education M. P.

2019-02-27

G.S.AHLUWALIA

body2019
JUDGMENT : 1. This petition under Article 226 of the Constitution of India has been filed seeking the following reliefs:- “(i) That, petitioner be awarded proper marks for her right answer which she has derived in her answer book and a proper mark sheet be issued on that basis. (ii) That, respondents be also directed to get answer verified for subject Math & Chemistry from an expert and award the correct marks which petitioner dealt in the answer book. (iii) That, any other relief which this Hon'ble High Court may deem fit, with cost of the petition.” It is the case of the petitioner that she had appeared in the Higher Secondary School Examination conducted by the respondent in the year 2017. The answer of the petitioner to question no.4 (iv) of Higher Mathematics was rightly given and it matches with the model answer-sheet, but still her answer was declared incorrect and no mark has been given. Similarly, by referring to answer to question no.16 of the same subject, it is submitted by the counsel for the petitioner that although the answer was correct, but still only one mark has been given. Per contra, it is submitted by the counsel for the respondent that as there is no provision for revaluation of the answer-sheet, therefore, this Court cannot direct for revaluation. The opinion of experts has to be respected and this Court in exercise of powers under Article 226 of the Constitution of India cannot substitute the opinion of experts either by itself or seeking an opinion of a Court appointed expert. To buttress his contentions, the counsel for the respondent has relied upon the judgments passed by the Supreme Court in the case of Buddhi Nath Chaudhary and others Vs. Abahi Kumar and others reported in (2001) 3 SCC 328 , H.P. Public Service Commission Vs. Mukesh Thakur reported in (2010) 6 SCC 759 , Neha Indurkhya Vs. M.P. Board of Secondary Education, Bhopal reported in 2003 (3) MPLJ 368 , Pranshu Indurkhya Vs. State of M.P. reported in 2000 MPHT 95, State of M.P. Vs. Ku. Taruni Gupta & Anr (W.A. No.892/2013), M.P. Board of Secondary Education & Ors Vs. Ku. Vineeta Rupra reported in 1998 (1) MPLJ 595 (DB), Ashutosh Kumar Mishra Vs. M.P. Board of Secondary Education, Bhopal reported in 2002 MPHT 237 , Neha Indurkhya Vs. State of M.P. reported in 2000 MPHT 95, State of M.P. Vs. Ku. Taruni Gupta & Anr (W.A. No.892/2013), M.P. Board of Secondary Education & Ors Vs. Ku. Vineeta Rupra reported in 1998 (1) MPLJ 595 (DB), Ashutosh Kumar Mishra Vs. M.P. Board of Secondary Education, Bhopal reported in 2002 MPHT 237 , Neha Indurkhya Vs. M.P. Board of Secondary Education, Bhopal reported in 2003 (3) MPLJ 368 (DB) and Ran Vijay Singh and others Vs. State of U.P. and others reported in AIR 2018 SCW 52. Considered the submissions made by the counsel for the parties. The Supreme Court in the case of Ran Vijay Singh (supra) has held as under:- “30. The law on the subject is therefore, quite clear and we only propose to highlight a few significant conclusions. They are: (i) If a statute, Rule or Regulation governing an examination permits the re-evaluation of an answer sheet or scrutiny of an answer sheet as a matter of right, then the authority conducting the examination may permit it; (ii) If a statute, Rule or Regulation governing an examination does not permit reevaluation or scrutiny of an answer sheet (as distinct from prohibiting it) then the Court may permit re-evaluation or scrutiny only if it is demonstrated very clearly, without any “inferential process of reasoning or by a process of rationalisation” and only in rare or exceptional cases that a material error has been committed; (iii) The Court should not at all re-evaluate or scrutinize the answer sheets of a candidate – it has no expertise in the matter and academic matters are best left to academics; (iv) The Court should presume the correctness of the key answers and proceed on that assumption; and (v) In the event of a doubt, the benefit should go to the examination authority rather than to the candidate.” The Supreme Court in the case of High Court of Tripura Through The Registrar General Vs. Tirtha Sarathi Mukherjee & Ors. by order dated 6/2/2019 passed in Civil Appeal No.1264/2019 has held as under:- “18. We have noticed the decisions of this Court. Undoubtedly, a three Judge Bench has laid down that there is no legal right to claim or ask for revaluation in the absence of any provision for revaluation. Undoubtedly, there is no provision. In fact, the High Court in the impugned judgment has also proceeded on the said basis. We have noticed the decisions of this Court. Undoubtedly, a three Judge Bench has laid down that there is no legal right to claim or ask for revaluation in the absence of any provision for revaluation. Undoubtedly, there is no provision. In fact, the High Court in the impugned judgment has also proceeded on the said basis. The first question which we would have to answer is whether despite the absence of any provision, are the courts completely denuded of power in the exercise of the jurisdiction under Article 226 of the Constitution to direct revaluation? It is true that the right to seek a writ of mandamus is based on the existence of a legal right and the corresponding duty with the answering respondent to carry out the public duty. Thus, as of right, it is clear that the first respondent could not maintain either writ petition or the review petition demanding holding of revaluation. 19. The question however arises whether even if there is no legal right to demand revaluation as of right could there arise circumstances which leaves the Court in any doubt at all. A grave injustice may be occasioned to a writ applicant in certain circumstances. The case may arise where even though there is no provision for revaluation it turns out that despite giving the correct answer no marks are awarded. No doubt this must be confined to a case where there is no dispute about the correctness of the answer. Further, if there is any doubt, the doubt should be resolved in favour of the examining body rather than in favour of the candidate. The wide power under Article 226 may continue to be available even though there is no provision for revaluation in a situation where a candidate despite having giving correct answer and about which there cannot be even slightest manner of doubt, he is treated as having given the wrong answer and consequently the candidate is found disentitled to any marks. 20. Should the second circumstance be demonstrated to be present before the writ court, can the writ court become helpless despite the vast reservoir of power which it possesses? 20. Should the second circumstance be demonstrated to be present before the writ court, can the writ court become helpless despite the vast reservoir of power which it possesses? It is one thing to say that the absence of provision for revaluation will not enable the candidate to claim the right of evaluation as a matter of right and another to say that in no circumstances whatsoever where there is no provision for revaluation will the writ court exercise its undoubted constitutional powers? We reiterate that the situation can only be rare and exceptional.” Thus, it is clear that in absence of any provision, the court should not generally direct for revaluation. Still it was insisted by the counsel for the petitioner that since the answers given by the petitioner were correct, therefore, she should have been awarded marks. For the satisfaction of the petitioner, they were heard on the question of correctness of the answers given by the petitioner. The petitioner in reply to question no. 4(iv) of Higher Mathematics had answered as under:- “(1, 2)” Whereas, as per the model answer, the correct answer was as under:- “(1, 2)” The square bracket and curvy bracket have different meaning. Use of square bracket is to indicate that the endpoint is included in the interval and a parenthesis, sometimes called a round/curvy bracket, is to indicate that it is not. Thus, the round/curvy bracket is distinguishable from square bracket. The petitioner had used round/curvy bracket, whereas for answering correctly the petitioner should have used square bracket. Thus, it is clear that the answer given by the petitioner to question no.4 (iv) of Higher Mathematics was not correct. Similarly, it is the contention of the respondent that one mark has been given for answer to question no.16. The formula adopted by the petitioner was not correct, but since the outcome was correct, therefore, one mark has been given. It is further submitted that as per the provisions of Regulation 119 of the Secondary Board of Education, the question could not have been revalued where one mark was already given by the examiner and only re-totaling is permissible. The formula adopted by the petitioner was not correct, but since the outcome was correct, therefore, one mark has been given. It is further submitted that as per the provisions of Regulation 119 of the Secondary Board of Education, the question could not have been revalued where one mark was already given by the examiner and only re-totaling is permissible. Under these circumstances, this Court is of the considered opinion that as the answer given by the petitioner to question no.4(iv) was incorrect and the formula adopted by the petitioner to answer question no.16 was not in accordance with the model answer and as one mark has been given by the examiner, this Court is of the considered opinion that while exercising power under Article 226 of the Constitution of India, this Court cannot substitute its own opinion as well as cannot substitute the opinion of the Court appointed expert. This Court has to respect the opinion of the examiner. Under these circumstances, this Court is of the considered opinion that no case is made out warranting interference. Accordingly, the petition fails and is hereby dismissed.