Gujarat High Court
Naryansinh Ishwarsinh Chavda vs State Of Gujarat on 11 July, 2018
Author: Harsha Devani
Bench: Harsha Devani, A.S. Supehia
C/LPA/621/2018 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/LETTERS PATENT APPEAL NO. 621 of 2018
in
SPECIAL CIVIL APPLICATION NO. 22241 of 2017
With
CIVIL APPLICATION NO. 2 of 2018
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NARYANSINH ISHWARSINH CHAVDA
Versus
STATE OF GUJARAT
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Appearance:
MR NIKHIL S KARIEL(2315) for the PETITIONER(s) No. 1
Mr. KRUTIK PARIKH, ASSISTANT GOVERNMENT PLEADER(1) for the
RESPONDENT(s) No. 1.
NOTICE SERVED BY DS(5) for the RESPONDENT(s) No. 2,3
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CORAM: HONOURABLE MS.JUSTICE HARSHA DEVANI
and
HONOURABLE MR.JUSTICE A.S. SUPEHIA
Date : 11/07/2018
ORAL ORDER
(PER : HONOURABLE MS.JUSTICE HARSHA DEVANI)
1. This appeal is directed against the judgment and order dated 11.1.2018 passed by the learned Single Judge in Special Civil Application No. 22241 of 2017, whereby the learned Single Judge has dismissed the petition on the ground that when there is no rule or regulation, much less statutory permission, permitting re-evaluation of answer book, the petitioner cannot seek any such relief invoking the jurisdiction of the high court under Article 226 of the Constitution.
2. The facts stated briefly are that by way of accelerated mode of promotion, that is, Mode-2 Promotion, the respondent No.2-Gujarat Subordinate Services Selection Board invited Page 1 of 12 C/LPA/621/2018 ORDER applications for the post of Police Sub-Inspector vide advertisement bearing reference no.61/201416. The candidates who were serving as constables or head constables were permitted to apply for the said post of Police Sub- Inspector. The petitioner is currently working as a constable (unarmed). The petitioner registered himself as a candidate for the examination. Pursuant to such registration the petitioner has appeared in the examination conducted for the post of Police Sub-Inspector. Upon declaration of results, the petitioner was declared disqualified as he failed to secure the minimum passing marks in English. Pursuant to such declaration of result on 9.10.2017, the petitioner made an application under the Right to Information Act, 2005 for a copy of the answer sheet of the English paper. The respondent-Board provided a copy of such answer sheet to the petitioner on 13.11.2017. Upon receiving a copy of the English answer sheet, the petitioner made an application to the Secretary of the respondent-Board for re-evaluation of his answer sheet and rectification of his marks. However, there was no response thereto. The petitioner, therefore, filed the captioned petition seeking a direction to the respondent-Board to re-evaluate the answer sheet of the petitioner as well as other ancillary reliefs.
3. By the impugned judgment and order the petition has been dismissed as misconceived in law and on facts.
4. Mr. Nikhil S. Kariel, learned advocate for the appellant- original petitioner, submitted that the appellant has scored 39 marks in English which is one mark less than the minimum required. Inviting attention to the answer sheet of the English paper of the appellant, it was pointed out that Question 6(A) is Page 2 of 12 C/LPA/621/2018 ORDER a fill in the blanks question and the appellant has answered all the questions correctly. But it is only because the appellant has not written complete sentences while filling the blanks that the examiner has deemed it fit to deduct half marks out of the total 12 marks and has given only 6 marks to the appellant. It was submitted that insofar as Question 6(B) is concerned, once again the appellant has answered all the questions correctly but only because he has not written down the whole sentence while answering the questions, the examiner has deducted half mark for each sub-question. It was submitted that while in respect of Question 6(A) it was specified that while filling the blanks that candidate has to rewrite the sentence, no such criteria or requirement has been specified for Question 6(B). It was contended that when the answers given by the petitioner are correct, there was no question of deducting any marks on the ground that full sentences have not been reproduced in the answer sheet.
4.1 It was urged that the learned Single Judge has erred in not taking into account the gross prejudice caused to the petitioner in relation to Questions 6(A) and 6(B)(ii) of the English question paper while evaluating the same. Reliance was placed upon the decision of the Supreme Court in the case of Ran Vijay Singh v. State of Uttar Pradesh, (2018) 2 SCC 357, wherein the court has highlighted a few significant conclusions, which read as under:
"30. The law on the subject is therefore, quite clear and we only propose to highlight a few significant conclusions. They are:
30.1If a statute, Rule or Regulation governing an examination permits the re-evaluation of an answer Page 3 of 12 C/LPA/621/2018 ORDER sheet or scrutiny of an answer sheet as a matter of right, then the authority conducting the examination may permit it;
30.2If 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 rationalization"
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 30.5In the event of a doubt, the benefit should go to the examination authority rather than to the candidate."
4.2 The learned advocate laid emphasis on paragraph 30.2 of the judgment, wherein the court has held that 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 rationalization" and only in rare or exceptional cases that a material error has been committed. It was submitted that this case would squarely fall within the ambit of the above paragraph inasmuch as though the rules and regulations governing the examination in question do not provide for re- evaluation, there is no distinct prohibition against re-evaluation or scrutiny of an answer sheet. It was argued that the Page 4 of 12 C/LPA/621/2018 ORDER petitioner has successfully demonstrated that a material error has been committed while evaluating English paper of the appellant which does not require any inferential process of reasoning or a process of rationalization. It was, accordingly, urged that the appeal deserves to be allowed by granting the relief as prayed in the petition.
5. Vehemently opposing the appeal, Mr. Krutik Parikh, learned Assistant Government Pleader has submitted that it is an admitted position that the English paper is a subjective paper and, therefore, the petitioner was bound to given full answers to every question. It was submitted that one has to look at the nature of the question to be able to discern the manner in which the answer is required to be written. It was submitted that on bare perusal of Question 6(B)(ii) it is evident that the answer would be properly reflected only if the entire sentence is reproduced. It was urged that ultimately what would be the correct evaluation of an answer is within the domain of the concerned expert and that in an English paper, a candidate is required to give a proper answer and, therefore, no fault can be found in the approach adopted by the examiner in deducting half mark for each question where the complete sentence was not written.
5.1 Next it was submitted that the rules are silent with regard to evaluation of answer sheet and do not provide for such re- evaluation in case of subjective papers and hence, the learned Single Judge was therefore, wholly justified in holding that when there is no rule or regulation permitting re-evaluation of answer book, the petitioner cannot seek any relief invoking the writ jurisdiction of the this court. Reference was made to Page 5 of 12 C/LPA/621/2018 ORDER paragraph 30.5 of the decision of the Supreme Court in the case of Ran Vijay Singh v. State of Uttar Pradesh (supra) to submit that in the event of a doubt, the benefit should go to the examination authority rather than to the candidate.
5.2 The learned Assistant Government Pleader further placed reliance on an order passed by a Division Bench of this Court on 16.4.2018 in the case of Rajesh Harshad Ratan v. State of Gujarat, in Letters Patent Appeal No.450 of 2018, wherein the court had noticed that the nature of answers given by the petitioner therein revealed that while answering the questions referred to therein, the petitioner therein had given answers which contained incorrect spellings of the words. In the said backdrop of peculiar facts, the court found no error in the judgment passed by the learned Single Judge. It was submitted that the above decision would squarely be applicable to the facts of the present case and, therefore, there is no warrant for interference by this court.
5.3 Reliance was also placed upon the decision of a Division Bench of this court in Gautambhai Govindlal Bhatt v. Gujarat Secondary Education Board, 2001 (1) GLH 242, wherein the court has held that the High Court should not interfere with the evaluation of answer books of a student unless mala fides or malpractices are alleged against the examiner. That the examination of papers is within the domain of teachers and when re-assessment is not permissible, it cannot be urged before the court that what the student has answered is correct and the marks should be given.
6. In rejoinder, Mr. Kariel, learned advocate for the appellant, submitted that insofar as the decision of the Division Page 6 of 12 C/LPA/621/2018 ORDER Bench of this Court in Gautambhai Govindlal Bhatt v. Gujarat Secondary Education Board (supra) is concerned, the court has placed reliance upon an earlier decision of the Supreme Court in the case of Maharashtra State Board of Secondary and Higher Secondary Education and another v. Paritosh Bhupesh Kumarsheth, A.I.R. 1984 SC 1543, which decision has been considered by the Supreme Court in the case of Ran Vijay Singh v. State of Uttar Pradesh (supra), while arriving at the above referred conclusions.
7. The short question that arises for consideration in the present appeal is as to whether in the facts and circumstances of this case, this court in exercise of its writ jurisdiction can direct the respondents to correct the marks assigned to the appellant in his English paper in terms of the relief as prayed for in the petition.
8. As noticed hereinabove, it is the case of the appellant that all the sub-questions under Questions No.6(A) and 6(B)(ii) of the English paper had been correctly answered by him; however, since he had not reproduced the full sentences, half mark was deducted in respect of each sub-question. It is the case of the appellant that the examiner was not justified in deducting half mark for each sub-question merely because the sentence had not been reproduced by him while filling in the blanks.
9. A perusal of the answer sheet of the appellant- petitioner (a copy whereof has been annexed along with the petition) reveals that all the answers to questions to the sub-questions in Questions 6(A) and 6(B)(ii) are correct. A perusal of the Page 7 of 12 C/LPA/621/2018 ORDER question paper reveals that insofar as Question 6(A) is concerned, it is specifically stated thus:
"6(A) Fill in the blanks (Re-write the sentences) (Any twelve)."
Insofar as Question No.6(B) is concerned it is stated thus, "6(B) Do as directed.
xxx xxx
(ii)Put proper question tag (Any two)."
In the answer sheet, in respect of the sub-questions in Question 6(A) which is a fill in the blanks question, instead of re-writing the whole sentences, the petitioner has only written the answer which was required to be filled in the blank. Undisputedly the answers are correct inasmuch as the examiner has also found them to be correct but has deducted half mark for not writing the complete sentence. Nonetheless, insofar as Question 6(A) is concerned, since the petitioner was required to re-write the sentence, but has failed to do so, this court is of the view that it cannot interfere with the discretion of the examiner in deducting half mark in respect of each sub- question for not re-writing the sentence as required. A perusal of the answer sheet further shows that the examiner has made an endorsement, "Full sentences are not written" as against the answers given in respect of Question 6(A).
10. Insofar as Question 6(B) is concerned, a perusal of the question paper reveals that it has not been specifically stated that the sentences have to be re-written. All that is stated is, "Put proper question tag". Accordingly, the petitioner has only Page 8 of 12 C/LPA/621/2018 ORDER put the question tag, but has not written the full sentences. However, against the answer to Question 6(B)(ii), the examiner has put an endorsement: "Write full sentences" and has given only half mark for each sub-question, despite the fact that the answers are all correct.
11. On a conjoint reading of Questions 6(A) and 6(B), it is manifest that insofar as Question 6(A) is concerned, the candidates are put to notice that they are required to re-write the sentences, however, there is no such requirement specified in respect of Question 6(B). Thus, when in the very same paper, when in respect of one question it has been clearly specified that the sentence has to be re-written and in case of another question there is no specification, a candidate would have reason to believe that he is not required to re-write the sentence insofar as Question 6(B) is concerned. Thus, when no requirement is specified in the question paper, the candidate cannot be put to a disadvantage for not writing the sentence in full. The contention that in the event of a doubt, the benefit should go to the examination authority rather than to the candidate cannot be accepted in the facts of the present case where the examiner is at fault in not clearly specifying that full sentences were required to be written in respect of Question 6(B).
12. The learned Single Judge has dismissed the petition on the ground that there is no rule or regulation, much less statutory permission, permitting re-evaluation of answer book, and therefore, the petitioner was not entitled to invoke the writ jurisdiction of this court. In the opinion of this court, a situation like the present one is squarely taken care of by the Supreme Page 9 of 12 C/LPA/621/2018 ORDER Court in the case of Ran Vijay Singh v. State of Uttar Pradesh (supra), wherein the court has held that 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 rationalization" and only in rare or exceptional cases that a material error has been committed. In the facts of the present case while there is no statute, rule or regulation permitting re- evaluation or scrutiny of the answer sheet, there is no distinct prohibition either. Under the circumstances in a rare and exceptional case, if it is demonstrated clearly, without any "inferential process of reasoning or by a process of rationalization"that a material error has been committed, it is always open for the court to permit re-evaluation or scrutiny.
13. Viewed in the above backdrop, this is not a case which involves re-evaluation of the answer sheet, but is a case where there is an error apparent on the face of the record. This court, while considering the correctness of the marks given to the appellant, is not required to embark upon any inquiry as to the correctness of the answers. In fact, the examiner himself has found the answers given by the appellant to be correct, but has deducted half mark for each answer for not writing the sentence in full. At the cost of repetition it may be stated that on a perusal of the question paper it is evident that insofar as Question 6(B)(ii) is concerned, there is no stipulation in the question paper that the sentence has to be written in full and hence, a candidate could have reason to believe that only writing the answer would suffice. In the opinion of this court, Page 10 of 12 C/LPA/621/2018 ORDER the absence of any such stipulation in the question paper, there was no justification on the part of the examiner to deduct half mark for each sub-question.
14. So far as the decision of this court in the case of Rajesh Harshad Ratan v. State of Gujarat rendered in Letters Patent Appeal No.450 of 2018 (supra) is concerned, in the peculiar facts of the said case, the court has observed that the answers given by the petitioner therein contained incorrect spellings. It goes without saying that in a language paper incorrect spellings would incur deduction of marks, which is not so in the present case. The said decision, therefore, would have no applicability to the facts of the present case. As regards the decision of the Division Bench of this court in the case of Gautambhai Govindlal Bhatt v. Gujarat Secondary Education Board (supra), a perusal of the same shows that reliance has been placed of the decision of the Supreme Court in the case of Maharashtra State Board of Secondary and Higher Secondary Education and another v. Paritosh Bhupesh Kumarsheth (supra), which has been considered by the Supreme Court in the case of Ran Vijay Singh v. State of Uttar Pradesh (supra) while arriving at the conclusions referred to hereinabove. Under the circumstances, the said decision also does not, in any manner, support the case of the respondents.
15. In the light of the above discussion, the court is of the view that the respondent No.2 was not justified in deducting half mark for each sub-question under Question 6(B)(ii) of the English paper of the appellant.
Page 11 of 12 C/LPA/621/2018 ORDER16. The letters patent appeal, therefore, succeeds and is accordingly allowed. The impugned order passed by the learned Single Judge, to the extent the same relates to Special Civil Application No.22241 of 2017, is hereby quashed and set aside. Special Civil Application No.22241 of 2017 is hereby allowed to the following extent. The respondent No.2- Board is, accordingly, directed to re-evaluate the answer sheet of English Paper the appellant in terms of the observations made hereinabove and grant the consequential benefits. Such exercise shall be completed within a period of two weeks from the date of receipt of a copy of this order. Direct service is permitted.
CIVIL APPLICATION NO.2 of 2018:
In the light of the above order passed in the main matter, this civil application for stay does not survive and is disposed of accordingly.
(HARSHA DEVANI, J) (A. S. SUPEHIA, J) karim Page 12 of 12