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2020 DIGILAW 357 (ALL)

Abhishek Sharma v. State of U. P.

2020-02-03

RAKESH SRIVASTAVA

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JUDGMENT : Rakesh Srivastava, J. 1. Heard Shri Mohd. Ateeq Khan, learned counsel for the petitioner and the learned Standing Counsel appearing on behalf of the State respondents. 2. The petitioner appeared in the Intermediate Examination, 2019 conducted by the Board of High School and Intermediate, Uttar Pradesh, Allahabad (for short "the Board') as a regular student from S.S. Bhupati Singh Memorial Inter College, Alambagh, Lucknow (for short "the College'). He passed the said examination in first division. However, the petitioner, alongwith two other students, filed a writ petition bearing Misc. Single No. 14803 of 2019 before this Court praying for re-evaluation of his answer-books pertaining to Mathematics and English question papers. In the absence of any provision for re-evaluation in the Board Examination, the prayer made by the petitioner for re-evaluation of his answer-books was rejected by a learned Single Judge of this Court by an order dated 24.5.2019. The learned Single Judge, however, granted liberty to the petitioner to invoke the provisions of Right to Information Act for getting copies of the answer-books in order to enable the petitioner to know the pattern of marking. The operative portion of the order dated 24.5.2019 is extracted below: "Learned counsel for the petitioners also could not bring to the notice of the Court any statutory or otherwise provision contained in any circular/executive order/rules/regulations or any enactment which permits re-evaluation of answer books. In the aforesaid view of the matter, the prayers made in this petition as such cannot be granted. At this juncture, learned counsel for the petitioners has prayed that the petitioners may be permitted to invoke the provisions of Right to Information Act for getting true/photostat copies of their answer books so that they can know the pattern of marking. Hon'ble Supreme Court in the case of CBSE v. Aditya Bandopadhyay and others, (2011) 8 SCC 497 , has held that under Right to Information Act if demanded, the answer books are to be permitted to be shown/copies thereof given to the candidates by the bodies conducting public examination. Hon'ble Supreme Court in the case of CBSE v. Aditya Bandopadhyay and others, (2011) 8 SCC 497 , has held that under Right to Information Act if demanded, the answer books are to be permitted to be shown/copies thereof given to the candidates by the bodies conducting public examination. In view of the aforesaid judgment, the petitioners are permitted to move appropriate application under the Right to Information Act for being provided with photostat/true copies of their answer books and in case any such application is made, the same shall be dealt with in accordance with law and the provisions contained in Right to Information Act by the Public Information Officer within the time stipulated for the said purpose under the Right to Information Act. On receipt of the photostat/true copies of the answer books if any grievance to the petitioners still subsist, it will be open to them to take recourse to the legal remedy which may be available to them under law for redressal of their grievances, if any. With the aforesaid observations and directions, the writ petition stands disposed of." 3. After obtaining copies of his answer-hooks of Mathematics and English papers, the petitioner, alongwith two other students, filed another writ petition bearing Misc. Single No. 30776 of 2019, Shivam Tiwari and others v. State of U.P. and others before this Court. On an objection being raised by the learned Standing Counsel with regard to mis-joinder of cause of action, this Court permitted the petitioner to withdraw his name from the said writ petition with liberty to him to file a fresh petition. 4. In the above background, the petitioner has approached this Court again, by means of the present writ petition, seeking a writ of mandamus directing the respondents to re-evaluate his Mathematics and English answer-books, wherein the petitioner has secured 53 and 56 marks respectively. It is averred that the petitioner had secured highest marks in other subjects and had also answered the questions in Mathematics and English papers correctly and was expecting more than 80 marks in the said subjects. It is alleged that the answers given by the petitioner to some questions, mentioned in paragraph 14 and 15 of the writ petition, in the Mathematics and English paper were correct answers but have been marked as incorrect, whereas in some questions less marks have been given by the examiner. It is alleged that the answers given by the petitioner to some questions, mentioned in paragraph 14 and 15 of the writ petition, in the Mathematics and English paper were correct answers but have been marked as incorrect, whereas in some questions less marks have been given by the examiner. It is averred that "it is common knowledge and sometimes also reported in the newspapers that unqualified persons check the copies of High School and Intermediate Examinations. Sometimes, copies are taken by the examiners at their homes and they are checked by family members and that all the examiners who check the copies are not expert of the concerned subject. These copies are checked in cursory manner without giving them sufficient time." In paragraph 9 of the writ petition it has been averred that mischief has been done at the place where the answer books were sent for evaluation and in paragraph 17 of the writ petition it has been averred that about 70 students appeared from the College in Intermediate Examination conducted by the Board and all aforesaid students have been awarded less marks in the Mathematics paper. The petitioner, it is alleged, tallied his answer copies and, also showed them to his Mathematics and English teachers and he was told by them that the examiners have not given him marks for the correct answers and in some of the questions less marks have been awarded by the examiners. It is on the basis of these vague and general averments, the petitioner prays for re-evaluation of his answer-books. 5. The learned counsel for the petitioner, relying upon an order dated 11.11.2019 passed by a learned Single Judge of this Court in writ petition bearing Misc. Single No. 30776 of 2019 prays that a direction be issued for re-evaluation of answer-books of Mathematics and English papers of the petitioner by an Associate Professor of Lucknow University of the subject concerned. 6. Per contra, the learned Standing Counsel has submitted that in the absence of any provision for re-evaluation in the Regulations of the Board, the Court cannot direct such re-examination or re-evaluation. 7. 6. Per contra, the learned Standing Counsel has submitted that in the absence of any provision for re-evaluation in the Regulations of the Board, the Court cannot direct such re-examination or re-evaluation. 7. By a series of decisions of the Apex Court, it is now a well-settled proposition of law that in the absence of any provision in the relevant Rules/Regulations providing for re-examination or re-evaluation of answer-books of a candidate in an examination, the Court cannot direct such reexamination or re-evaluation. 8. In Maharashtra State Board of Secondary and Higher Secondary Education v. Paritosh Bhupeshkumar Sheth, (1984) 4 SCC 27 , the Apex Court held that in the absence of a specific provision conferring a right upon an examinee to have his/her answer-sheets re-evaluated, no such direction can be issued. The principles set out in the said case have been consistently followed by the Apex Court in a series of judgments. 9. In Pramod Kumar Srivastava v. Chairman, Bihar Public Service Commission, (2004) 6 SCC 714 , a three Judge bench of the Apex Court observed as under: "7. ......Under the relevant rules of the commission, there is no provision wherein a candidate may be entitled to ask for re-evaluation of his answer-book. There is a provision for scrutiny only wherein the answer-books are seen for the purpose of checking whether all the answers given by a candidate have been examined and whether there has been any mistake in the totaling of marks of each question and noting them correctly on the first cover page of the answer-book. There is no dispute that after scrutiny no mistake was found in the marks awarded to the appellant in the General Science paper. In the absence of any provision for reevaluation of answer-books in the relevant rules, no candidate in an examination has got any right whatsoever to claim or ask for re-evaluation of his marks." (emphasis supplied) 10. The same view has been expressed by the Apex Court in Board of Secondary Education v. Pravas Ranjan Panda, (2004) 13 SCC 383 , Board of Secondary Education v. D. Suvankar, (2007) 1 SCC 603 , W.B. Council of Higher Secondary Education v. Ayan Das, (2007) 8 SCC 242 , Himanchal Pradesh Public Service commission v. Mukesh Thakur, (2010) 6 SCC 759 and Tanya Malik v. Registrar General of the Delhi High Court, (2018) 14 SCC 129 . 11. 11. In the present case, admittedly, there is no provision for re-evaluation with respect to examination conducted by the Board. In view of the settled legal position discussed above, in the absence of any provision for re-evaluation or reassessment, the claim of the petitioner for re-evaluation of his answer-sheets cannot be upheld. 12. As stated above, the learned counsel for the petitioner has placed heavy reliance upon an order dated 11.11.2019 passed by a learned Single Judge of this Court in Misc. Single No. 30776 of 2019. The order dated 11.11.2019 is extracted below in extenso: "1. Heard learned counsel for the petitioners and learned Standing Counsel for the State respondents Sri Upendra Singh. 2. Learned Standing Counsel has raised a preliminary objection as to the maintainability of the writ petition jointly by the petitioners, saying that petitioner No. 3 wants his answer copy of English examination to be reevaluated, whereas petitioner Nos. 1, 2 and 4 want reevaluation of their answer copies of Mathematics examination. There is mis-joinder of cause of action. 3. Learned counsel for the petitioners has submitted that petitioner No. 3 wants his Mathematics answer copy as well as English answer copy to be reevaluated and, therefore, it cannot be said that there is total mis-joinder of cause of action. 4. This Court grants liberty to petitioner No. 3 to file fresh petition, both for his Mathematics and English answer copies and his name be deleted from the array of the petitioners. 5. It has been submitted by the learned counsel for the petitioners that the petitioners had earlier approached this Court by filing Writ Petition No. 14803 (MS) of 2019 and this Court had disposed of the writ petition on 24.5.2019, granting liberty to the petitioners to file an application under Right to Information Act to procure the photocopies of their answer books with respect to Mathematics and English papers as written by them in their Intermediate Examination of the year 2019. 6. The petitioners thereafter applied under the Right to Information Act for getting two photocopies of their answer books. From the photocopies that were supplied by the respondent Nos. 2 and 3, the petitioners have come to know that the answer books of their Mathematics paper have not been marked correctly. In Paras 13, 14 and 15 of the writ petition, the petitioners have mentioned the followings facts. "13. From the photocopies that were supplied by the respondent Nos. 2 and 3, the petitioners have come to know that the answer books of their Mathematics paper have not been marked correctly. In Paras 13, 14 and 15 of the writ petition, the petitioners have mentioned the followings facts. "13. That the petitioner No. 1 allotted the number as 0902018. The correct answers of question number 1(b), 1(c), 2(a), 2(b), 2(c), 2(d) and 2(e) but the examiner has held the said answer wrong although they are correct answers. The examiners have given less mark to question number 3 a, b, c, d and question number 4-a, b, c, d. 14. That the petitioner No. 2 allotted the number as 0901994 and petitioner No. 3 0901989. The correct answers of question number 5 (b) e, 6-b, c, d, f but the examiner has held the said answer wrong although they are correct answers. The examiner has given less mark to question number 5a, and question number 9-d. 15. That the petitioner No. 4 allotted the number as 0902014. The correct answers of question number 1(b), 1(c), 2(a), 2(e), 3-a, b, d and 4 c, d are correct but the examiner has held the said answer wrong although they are correct answers. The examiner has given less mark to question number 5-a, d, e, f and question number 6-a, b, c, d, e question No. 8-b question No. 9-a and question No. 2-b." 7. Since the petitioners have filed photocopies of the answer sheet for Mathematics paper as Annexure to the writ petition, it would be in the interest of justice that this Court entertains the writ petition, although as submitted by the learned counsel for the State respondents, there is no provision for reevaluation. 8. Since the petitioners have raised doubts with regard to correct answers in regard to Mathematics for which, this Court does not consider itself to be an expert, copies of the answer books of the petitioners in Mathematics paper shall be given to a Professor or an Associate Professor in Mathematics in Lucknow University for evaluation of the petitioners' contention as raised by them in Paras 13, 14 and 15 of the writ petition. 9. 9. The respondent No. 3 shall provide true photocopies of the answer sheet of the petitioners in Mathematics paper for Intermediate Examination of the year 2019 in sealed cover to the learned counsel for the State respondents Sri Upendra Singh, who shall request the learned counsel for the Lucknow University Sri Savitra Vardhan Singh to ask the Associate Professor of the Mathematics Department to look over the doubts raised by the petitioners herein and submit a report to this Court within a period of four weeks. The report shall be submitted to this Court in a sealed cover through the Registrar of the Lucknow University. 10. Let the answer copies of Mathematics paper of petitioner Nos. 1, 2 and 4 be provided to the learned counsel for the State respondents Sri Upendra Singh within ten days from the date of receipt of a certified copy of this order through the petitioners, which shall be forwarded by him to the learned counsel for the Lucknow University Sri Savitra Vardhan Singh within a further period of three days. 11. List this matter on 9.12.2019." 13. The order dated 11.11.2019 is only an interlocutory order. Before passing the said order the learned Judge has not considered and discussed the law on the subject. It is trite that a decision is binding not because of its conclusions but in regard to its ratio and the principles, laid down therein. Any declaration or conclusion arrived at without application of mind or not preceded by any reason cannot be deemed to be declaration of law or authority of a general nature binding as a precedent. The petitioner, thus, derives no benefit from the order aforesaid. 14. That apart, in almost identical circumstances, in the case of Pramod Kumar Srivastava (supra), while setting aside the judgment and order passed by the Patna High Court, the Apex Court deprecated the manner in which the High Court had directed the answer-book of General Science paper of the petitioner, in that case, to be re-evaluated by expert teachers through the Principal of a Science College. Paragraph 8, 9 and 10 of the said report are being extracted below: "8. Adopting such a course as was done by the learned Single Judge will give rise to practical problems. Many candidates may like to take a chance and pray for re-evaluation of their answer-books. Paragraph 8, 9 and 10 of the said report are being extracted below: "8. Adopting such a course as was done by the learned Single Judge will give rise to practical problems. Many candidates may like to take a chance and pray for re-evaluation of their answer-books. Naturally, the Court will pass orders on different dates as and when writ petitions are filed. The Commission will have to then send the copies of individual candidates to examiners for re-evaluation which is bound to take time. The examination conducted by the Commission being a competitive examination, the declaration of final result will thus be unduly delayed and the vacancies will remain unfilled for a long time. What will happen if a candidate secures lesser marks in re-evaluation? He may come forward with a plea that the marks as originally awarded to him may be taken into consideration. The absence of clear rules on the subject may throw many problems and in the larger interest, they must be avoided. 9. Even otherwise, the manner in which 'the learned Single Judge had the answer-book of the appellant in General Science paper reevaluated cannot be justified. The answer-book was not sent directly by the Court either to the Registrar of Patna University or to the Principal of Science College. A photocopy of the answer-book was handed over to the Standing Counsel for Patna University who returned the same to the Court after some time and a statement was made to the effect that the same had been examined by two teachers of Patna Science College. The names of the teachers were not even disclosed to the Court. The examination in question is a competitive examination where the comparative merit of a candidate has to be judged. It is, therefore, absolutely necessary that a uniform standard is applied in examining the answer-books of all the candidates. It is the specific case of the Commission that in order to achieve such an objective, a centralised system of evaluation of answer-books is adopted wherein different examiners examine the answer-books on the basis of model answers prepared by the Head Examiner with the assistance of other examiners. It was pleaded in the letters patent appeal preferred by the Commission and which fact has not been disputed that the model answer was not supplied to the two teachers of Patna Science College. It was pleaded in the letters patent appeal preferred by the Commission and which fact has not been disputed that the model answer was not supplied to the two teachers of Patna Science College. There can be a variation of standard in awarding marks by different examiners. The manner in which the answer-books were got evaluated, the marks awarded therein cannot be treated as sacrosanct and consequently, the direction issued by the learned Single Judge to the Commission to treat the marks of the appellant in General Science paper as 63 cannot be justified." (emphasis supplied) 15. In view of the above discussion, no ground for interference is made out. The writ petition, being devoid of merit, is hereby dismissed.