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2020 DIGILAW 433 (CAL)

Priyanka Kumari Pandey v. State Of West Bengal

2020-03-16

BIBEK CHAUDHURI

body2020
JUDGMENT Bibek Chaudhuri, J. - The petitioner is a student of B.Sc. Economics (Honours) in the Bhawanipur Education Society College (hereafter the said college). The said college is affiliated to the University of Calcutta. The petitioner appeared in semester-II of B.Sc. Economics (Honours) under Choice Based Credit System (CBCS), 2018-19 of the University of Calcutta in the year 2019. She passed in all theoretical, practical and internal assessment examinations successfully. However, internal assessment of ENVS-PR (AECC2) project work was, according to the petitioner not properly evaluated and she was declared failed in ENVS-PR (AECC2) project work. She has been awarded only 7 marks out of 30 marks in the said internal assessment. As the petitioner failed to get the minimum pass mark, i.e, 9 marks out of 30 marks, she was declared unsuccessful in SemesterII of the B.Sc. (Honours) Examination. After receiving the result in the official website of the University of Calcutta, the petitioner was in utter shock. On 2nd September, 2019, she made an application to the College Authority for reconsideration/re-evaluation of the ENVS- PR (AECC-II) project work by the teacher-in-charge of the department of geography or any other independent authority, having the experience in the subject, because she felt that she was under marked in the subject although her practical project had good contents. The petitioner stated further that distribution of marks in Environmental Studies is as hereunder:- Theoretical 50 Marks Practical 30 Marks Internal Assessment 20 Marks. 2. Out of 50 in theory she obtained 34 marks, out of 20 in internal assessment she got 15 marks and out of 30 in practical examination she obtained only 7 marks. Immediately on getting the result of Semester-II Examination the petitioner sent an email to the concerned authorities of the University of Calcutta on 3rd September, 2019 for reconsideration of her marks obtained in practical examination, but the university refused to consider her application. The teacher-in-charge of the said college forwarded an application addressed to the Controller of Examination, University of Calcutta by the petitioner praying for review of her project in the practical examination. Finally on 20th September, 2019 the petitioner received a letter from Dr. Suchandra Chakraborty, teacher-in-charge and came to know that on her request, the college authority sent her project for re-evaluation to Dr. Punarbasu Chaudhuri, Assistant Professor, Department of Environmental Sciences, University of Calcutta. Dr. Finally on 20th September, 2019 the petitioner received a letter from Dr. Suchandra Chakraborty, teacher-in-charge and came to know that on her request, the college authority sent her project for re-evaluation to Dr. Punarbasu Chaudhuri, Assistant Professor, Department of Environmental Sciences, University of Calcutta. Dr. Chaudhuri reassessed the project work of the petitioner and submitted a report on 7th September, 2019 stating, inter alia, that had he evaluated the said project work of the petitioner, he would have awarded her 12 marks out of 30 marks. Based on the said report submitted by Dr. Punarbasu Chaudhuri, Assistant Professor, University of Calcutta, the college authority requested the Controller of Examination, University of Calcutta for reevaluation. But the Controller of Examination, University of Calcutta orally informed Dr. Subhobroto Ganguly, Associate Professor of the said college that as per CSR No.CSR/07/18 by the University of Calcutta, there is no provision for reevaluation/rechecking of ENVS projects and the petitioner's request for reevaluation of her ENVS project was turned down by the university of Calcutta. 3. Under the facts and circumstances made hereinabove, the petitioner has prayed for issuance of writ in the nature of mandamus commanding the respondents to reconsider/reevaluate/reexamine her project work in ENVS-PR (AECC2) of B.Sc. Economics (Honours), Semester-II Examination of 2019 on the basis of the report submitted by Mr. Punarbasu Chaudhuri, Assistant Professor, Department of Environmental Studies, University of Calcutta. The petitioner has also prayed for a writ in the nature of certiorari calling upon the respondents and each of them to certify and transmit to this Court the original records of the case for conscionable justice. 4. The respondent Nos.2, 3 and 4 being the University of Calcutta, the ViceChancellor of the said University and the Controller of Examinations have filed an affidavit-in-opposition duly affirmed by the Assistant Controller of Examinations, University of Calcutta stating, inter alia, that the petitioner appeared in Semester-II examination of B.Sc. Economics (Honours) course conducted by the University of Calcutta under the Choice Based Credit System (CBCS), 2019. The petitioner failed in the practical examination in view of the fact that she secured only 7 marks out of 30 in her project work. The examination/evaluation of project work is conducted by the College Authority and accordingly, evaluation of the project is entirely within the domain of the college. After completion of evaluation process, the College Authority upload the marks of the individual students online. The examination/evaluation of project work is conducted by the College Authority and accordingly, evaluation of the project is entirely within the domain of the college. After completion of evaluation process, the College Authority upload the marks of the individual students online. The entire examination of B.Sc. Economics (Honours) Semester-II under CBCS, 2019 was conducted by the University of Calcutta under the strict examination regulations vide notification No.CSR/3/18 dated 7th May, 2019 duly approved by the Syndicate of the University and the said examination regulation came into effect from the academic cession 2018-19. The said notification was also duly communicated to the principal/teacher-in-charge of all the colleges affiliated to the University of Calcutta. Regulation 20 of such notification No.CSR/3/18 dated 7th May, 2018 deals with the scope of reexamination/review of papers of the candidates wherein it is specifically stated that reexamination/review is only applicable for theoretical papers of end semester examination and it is not permissible for internal assessment, practical or tutorial examination and project work. Therefore, there is no scope for reexamination or review of any practical paper project work in the B.Sc. Examination under CBSC, 2019. As the petitioner failed to secure the minimum pass mark in her project work she was declared 'fail' in environmental science examination. The University Authority has no scope for reexamination or re-evaluate the project work of the petitioner. 5. The respondent No.5 and 6 being the governing body and the teacher-incharge of the said college respectively have filed a separate affidavit-in-opposition wherein they have admitted the factual statements made by the petitioner in her application under Article 226 of the Constitution. 6. It is further stated on behalf of the said respondents that after publication of result, when it was learnt by the petitioner that she was awarded 7 marks out of 30 marks in ENVS project, she sought for certified copy of her project from the college authority. At the request of the petitioner, the college sent the project for reevaluation/observation/opinion of Dr. Punarbasu Chaudhuri, Assistant Professor, Department of Environmental Sciences, University of Calcutta. Dr. Chaudhuri submitted his observation report dated 9th September, 2019 informing, inter alia, that according to him the petitioner ought to have been awarded 12 marks out of 30 marks. The petitioner was duly informed about the said observation of Dr. Punarbasu Chaudhuri, Assistant Professor, Department of Environmental Sciences, University of Calcutta. Dr. Chaudhuri submitted his observation report dated 9th September, 2019 informing, inter alia, that according to him the petitioner ought to have been awarded 12 marks out of 30 marks. The petitioner was duly informed about the said observation of Dr. Punarbasu Chaudhuri, Assistant Professor, Department of Environmental Sciences, University of Calcutta. The college authority also obtained report from the concerned teacher, namely Dr. Mahua Das on 6th December, 2019 to ascertain the circumstances and mode and manner of reviewing the project work of the students including the petitioner. It was candidly stated by Professor Dr. Mahua Das that there is no guideline for checking ENVS project published by University of Calcutta so far as she knows. She further stated that she checked all the projects of the students appearing in B.Sc owners in economics examination, semester-II impartially with best of her knowledge and expertise on the subject and as per the guideline and method through which she used to teach the students in the ENVS classes. While checking the project work of the petitioner she found the following flaws in the said project as hereunder:- (a) No proper proof like authentic maps (with source, heading, north line, scale, index, etc.), statistical diagrams, statistical data was given in support of all the points written by her which are essential to the standard of any such project. (b) Whatever diagrams she had given were not found relevant and authentic. Accordingly, she was of the view that the petitioner was entitled to get 7 marks in ENVS Project. 7. Learned Advocate for the petitioner stakes the claim of the petitioner mainly on the basis of the observation made by Dr. Punarbasu Chaudhuri, Assistant Professor, Department of Environmental Sciences, University of Calcutta. It is submitted by the learned Advocate for the petitioner that Dr. Chaudhuri is not associated with the college. He is the Assistant Professor of the Department of Environmental Science of the University of Calcutta. He reevaluated the project of the petitioner objectively and made his assessment informing the teacher-in-charge of the college that he would have awarded 12 marks out of 30 marks in the project work of the petitioner. 8. It is also submitted by the learned Advocate for the petitioner that the petitioner is a student of extraordinary merit. She was designated as Bhawanipur Scholar in recognition of her hard work, consistency and academic excellence. 8. It is also submitted by the learned Advocate for the petitioner that the petitioner is a student of extraordinary merit. She was designated as Bhawanipur Scholar in recognition of her hard work, consistency and academic excellence. In paper 1 of B.Sc Semester-2 (Honours) Examination the petitioner got 63 out of 100 in Introductory Macro Economics, 73 out of 100 in Mathematical Method for Economics I 51 out of 100 in elementary probability. She got 34 out of 50 in Theoretical paper of Environmental Statistic which means 68%, 15 out of 20, i.e 75% in practical and 7 out of 30 in project work. Learned Advocate for the petitioner further submits that 9 is the pass mark in the project work out of 30. Had she got 8 marks, out of 30, according to University Rules she was entitled to get 1 grace marks meaning thereby she would have been declared passed. 9. Thus it is submitted by the learned Advocate for the petitioner that under the prevailing circumstances this Court can issue a writ of mandamus directing the university authority to reconsider the assessment of mark obtained by her in ENVS project in the said examination. 10. Learned Advocate for the University of Calcutta has vehemently objected to such submission made by the learned Advocate for the petitioner. He relies upon the Admission and Examination Regulation for Semester-Wise Three years B.A/B.Sc/B.Mus. (Honours/General) Courses of Studies under Choice Based Credit System (CBCS) of University of Calcutta. He mainly refers to Part-II of CBCS regulation which contains Examination Regulations under the said system. Regulation 20 deals with reexamination/review. Clause I of the said regulation States:- "Reexamination/review is applicable only for theoretical papers of different End Semester Examinations of 3 year B.A/B.Sc/B.Mus. Course of Studies. Re-examination/review is not permissible for Internal Assessment, Practical and Tutorial Examinations and Project Work." Thus, it is contended by the learned Advocate for the University of Calcutta that as the rule does not permit reexamination/review of project work of an examinee, the petitioner is bound by the said rule and the court cannot pass any order in violation of such regulation. 11. The learned Senior Advocate and Additional Government Pleader of the State West Bengal submits that the State shall comply with any direction that may be passed in the instant matter by the Court. 12. 11. The learned Senior Advocate and Additional Government Pleader of the State West Bengal submits that the State shall comply with any direction that may be passed in the instant matter by the Court. 12. There is no dispute on the point that if a statute, rule or regulation permits reevaluation of an answer sheet or scrutiny of an answer sheet as a matter of right, then it must be permitted. Regulation 20 of the part-II of CBCS Regulation does not permit reevaluation of project work of a student at the end of any semester conducted by the university. 13. In Maharashtra State Board of Secondary and Higher Secondary Education vs. Paritosh Bhupeshkumar Sheth, 1984 4 SCC 27 , the Hon'ble Supreme Court describe in paragraph 29 as hereunder:- "29...... As has been repeatedly pointed out by this court, the Court should be extremely reluctant to substitute its own views as to what is wise, prudent and proper in relation to academic matters in preference to those formulated by professional men possessing technical expertise and rich experience of actual day-to-day working of educational institutions and the departments controlling them. It will be wholly wrong for the court to make a pedantic and purely idealistic approach to the problems of this nature, isolated from the actual realities and grass root problems involved in the working of the system and unmindful of the consequences which would emanate if a purely idealistic view as opposed to a pragmatic one were to be propounded. It is equally important that the Court should also, as far as possible, avoid any decision or interpretation of a statutory provision, rule or bye-law which would bring about the result of rendering the system unworkable in practice. It is unfortunate that this principle has not been adequately kept in mind by the High Court while deciding the instant case." 14. The facts in CBSE vs. Khushboo Shrivastava, 2014 14 SCC 523 is also worthy of mentioning. The respondent was a candidate in All India Pre-Medical/Pre-Dental Entrance Examination, 2007 conducted by the CBSE. Soon after the results of the examination were declared she applied for reevaluation of her answer sheets. CBSE declined her request since there was no provision for this. The facts in CBSE vs. Khushboo Shrivastava, 2014 14 SCC 523 is also worthy of mentioning. The respondent was a candidate in All India Pre-Medical/Pre-Dental Entrance Examination, 2007 conducted by the CBSE. Soon after the results of the examination were declared she applied for reevaluation of her answer sheets. CBSE declined her request since there was no provision for this. She then filed a writ petition in the High Court and the learned Single Judge called for her answer sheets and on a perusal thereof and on comparing her answers with the model or key answers concluded that she deserved an additional two marks. The view of the learned Single Judge was upheld by the Division Bench of this Court. 15. In appeal, the Hon'ble Supreme was pleased to set aside the decision of the High Court and reiterated the view already expressed by this Apex Court from time to time. It was held: "9. We find that a three-Judge Bench of this Court in Pramod Kumar Srivastava v. Bihar Public Service Commission has clearly held relying on Maharashtra State Board of Secondary and Higher Secondary Education v. Paritosh Bhupeshkumar Sheth that in the absence of any provision for the re-evaluation of answer books in the relevant rules, no candidate in an examination has any right to claim or ask for reevaluation of his marks. The decision in Pramod Kumar Srivastava v. Bihar Public Service Commission was followed by another three-Judge Bench of this Court in Board of Secondary Education v. Pravas Ranjan Panda in which the direction of the High Court for re- evaluation of answer books of all the examinees securing 90% or above marks was held to be unsustainable in law because the regulations of the Board of Secondary Education, Orissa, which conducted the examination, did not make any provision for re- evaluation of answer books in the rules. In the present case, the bye-laws of the All India Pre-Medical/PreDental Entrance Examination, 2007 conducted by the CBSE did not provide for re-examination or re-evaluation of answer sheets. Hence, the appellants could not have allowed such re-examination or reevaluation on the representation of Respondent 1 and accordingly rejected the representation of Respondent 1 for re-examination/reevaluation of her answer sheets...... In the present case, the bye-laws of the All India Pre-Medical/PreDental Entrance Examination, 2007 conducted by the CBSE did not provide for re-examination or re-evaluation of answer sheets. Hence, the appellants could not have allowed such re-examination or reevaluation on the representation of Respondent 1 and accordingly rejected the representation of Respondent 1 for re-examination/reevaluation of her answer sheets...... In our considered opinion, neither the learned Single Judge nor the Division Bench of the High Court could have substituted his/its own views for that of the examiners and awarded two additional marks to Respondent 1 for the two answers in exercise of powers of judicial review under Article 226 of the Constitution as these are purely academic matters. ......." 16. The Hon'ble Supreme Court in Ran Vijay Singh & Ors. vs. State of Uttar Pradesh & Ors., 2018 2 SCC 357 has summarized the law on the subject in the following words:- "30.1. 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; 30.2. If a statute, Rule or Regulation governing an examination does not permit re-evaluation 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; 30.3. 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; 30.4. The Court should presume the correctness of the key answers and proceed on that assumption; and 30.5. In the event of a doubt, the benefit should go to the examination authority rather than to the candidate." 17. In High Court of Tripura Through The Registrar General vs. Tirtha Sarathi Mukherjee & Ors.,2019 SCCOnLineSC 139 , the Hon'ble Supreme Court was pleased to deal with the question as to 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 reevaluation? In High Court of Tripura Through The Registrar General vs. Tirtha Sarathi Mukherjee & Ors.,2019 SCCOnLineSC 139 , the Hon'ble Supreme Court was pleased to deal with the question as to 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 reevaluation? The Hon'ble Supreme court observed that 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 re-evaluation. 18. Paragraph 20 of the aforesaid report is important and quoted below:- 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. 19. Thus, it is one thing to say that the absence of provision for re-evaluation will not enable the candidate to claim the right of valuation as a matter of right and in the alternative, to say that in no circumstances whatsoever where there is no provision for re-evaluation, the writ court cannot exercise its constitutional powers. 19. Thus, it is one thing to say that the absence of provision for re-evaluation will not enable the candidate to claim the right of valuation as a matter of right and in the alternative, to say that in no circumstances whatsoever where there is no provision for re-evaluation, the writ court cannot exercise its constitutional powers. In rare and exceptional situation the constitutional court can of course exercise its jurisdiction under Article 226 of the Constitution though the statutory provision does not permit the petitioner to claim re-evaluation as a matter of right. 20. Bearing the above precedent on the subject in mind enunciated by the Hon'ble Supreme Court, let me now consider the factual background. The petitioner was awarded 7 marks out of 30 marks in ENVS project by the Dr. Mahua Das a professor of the college where the petitioner is a student. The petitioner does not make any allegation of animosity against the said Dr. Mahua Das. According to the petitioner, her project work was not properly assessed by the concerned teacher. It is important to note the said Dr. Mahua Das submitted a written report to the effect that there is no written guideline of evaluating the project work issued by the University of Calcutta. She evaluated project work of the petitioner on the basis of certain norms set out by herself. According to her she evaluated the project work impartially (emphasis supplied). 21. On the other hand, the college authority sent the said project of the petitioner to an Assistant Professor of Environmental Science of the University of Calcutta who reevaluated the project work and observed that the candidate would have been awarded 12 marks out of 30 marks. It is important to note that the petitioner is not a student of the said Assistant Professor of the University of Calcutta. From his report it is clear that he reevaluated the project work of the petitioner objectively and gave reasons as to why she ought to have deserved 12 marks out of 30 marks. The University of Calcutta, (Respondent No.2,3 and 4) in the affidavit-in-opposition has not disputed reassessment of the project work by the Assistant Professor of the University of Calcutta. It is only stated that such reevaluation is not permissible under CBCS regulation. 22. The University of Calcutta, (Respondent No.2,3 and 4) in the affidavit-in-opposition has not disputed reassessment of the project work by the Assistant Professor of the University of Calcutta. It is only stated that such reevaluation is not permissible under CBCS regulation. 22. Since the examiner who initially examined the project work of the petitioner, clearly admitted that there is no guideline of the University of Calcutta to evaluate the project work of a candidate and she assessed the project work of the students on the basis of some guideline set out by her, it is clear that the initial review of the project work of the petitioner was not done on the basis of "inferential process of reasoning or by a process of rationalization". The internal examiner awarded the petitioner 7 marks because she failed to submit certain maps, diagrams etc in support of her conclusion of the project. The same project work was assessed by an independent professor of the university and he was of the opinion that the petitioner ought to have been awarded 12 marks out of 30. 23. Under such circumstances, the instant writ petition is disposed of directing the respondent No.3, the Vice Chancellor of the University of Calcutta to consider the prayer of the petitioner in the light of the observation made hereinabove and take the final decision on the assessment of project work of ENVS of the candidate/petitioner within 60 days from the date of communication of the order. Urgent certified website copies of this judgment, if applied for, be supplied to the parties subject to compliance with all requisite formalities.