Calcutta High Court (Appellete Side)
Miss Suchandra Roy & Anr vs Secretary on 23 August, 2017
Author: Rakesh Tiwari
Bench: Mir Dara Sheko, Rakesh Tiwari
IN THE HIGH COURT AT CALCUTTA
Civil Appellate Jurisdiction
Appellate Side
Present : The Hon'ble Justice Rakesh Tiwari
and
The Hon'ble Justice Mir Dara Sheko
F.M.A. 4751 of 2016
+
CAN 9206 of 2016
Miss Suchandra Roy & Anr.
vs.
Secretary, Education Department, State of West Bengal & Ors.
For the Appellants : Mr. Subir Sanyal
Ms. Sumita Shaw
For the University of Calcutta : Dr. Sutanu Kr. Patra
Mr. Rajib Kr. Basak
For the Respondent nos. 3-4 : Mr. Sankar Prashad Dalapati
Mr. Satyajit Mahata
Heard on: 3rd August, 2017
Judgment on: 23rd August, 2017
Rakesh Tiwari, J.: The appellants being dissatisfied with the order and judgment dated 12th
July, 2016 passed by a Writ Court (Single Judge) in Writ Petition no. 1020(W) of 2016 (Ms.
Suchandra Roy Another vs. Secretary, Education Department and Another) have preferred this
appeal on the grounds that the learned Judge has erred in law in considering the general
observations made by the outside examiner appointed vide order of this Court dated 7th June,
2016 wherein the examiner is said to have travelled beyond jurisdiction and that by the order
dated 7th June, 2016, the Court was pleased to direct the Board of Studies of the college to
appoint examiners from outside its faculties for the purpose of re-examination of module 7.1 of
the appellant no. 1 and copy of the report of the external examiners was also not provided to the
appellants and hence the general observations in the report which is stigmatic in nature,
according to the petitioners, were liable to be quashed. The said report itself which has
prejudicially affected the fate of the petitioners would itself make the impugned order dated 12th
July, 2016 null and void and non est in the eyes of law.
It appears from record that the petitioner no. 1 (appellant no. 1 herein) Ms. Suchandra
Roy was a student of M.A. (English) in Lady Brabourne College. The aforesaid writ petition had
been preferred by her along with her father Mr. Sekhar Roy, being writ petitioner no. 2 (appellant
no. 2 herein) against the respondents namely, 1) Secretary, Education Department, State of West
Bengal, 2) Registrar, University of Calcutta, 3) Principal, Lady Brabourne College and 4) Public
Information Officer, Lady Brabourne College. The petitioners have sought the following reliefs in
the writ petition on the allegations that the answer scripts of the petitioner no. 1 for the post
graduate course in English had not been evaluated properly which are reproduced below:
" a) Writ in the nature of Mandamus directing the Respondents to correct the
marks obtained by Petitioner no. 1 in the Examination of M.A. in English
literature (Semester system) result declared on 10.10.2015 under the University of
Calcutta;
b) directing upon the respondents no. 2, 3 and 4 to produce the answerscripts-
sheets of all the subjects of all four semesters of M.A. in English Literature
(Semester system) result declared on 10.10.2015 before this Hon'Ble High Court;
c) To give further direction upon Respondents to give xerox copies of all answer
scripts/sheets of all subjects of all the four semesters in M.A. in English
Literature (Semester system) result declared on 10.10.2015;
d) Cost of the petition;
e) Pass such other or further order or orders and/or to pass appropriate direction
or directions as Your Lordships may deem fit and proper;"
The Court in the aforesaid circumstances, it appears, had requested the Vice Chancellor of
the Calcutta University to constitute a two-member committee in order to mitigate the grievances
of the petitioners. The two-member committee constituted by the Vice Chancellor pursuant to the
order of this Court dated May 3, 2016 submitted its report on 12th July, 2016 with its
recommendation. The relevant extract of the report reads thus:
"So the committee feels that technically there should be no reason for the
petitioner to have grievance. However, since subjective evaluation of answer scripts is
outside the expertise of the Committee, the college may consider re-examining the
answer scripts of Module 7.1 of the petitioner if any such application is made. Though
the time limit for such application is over and the petitioner who was eligible for re-
examination did not apply within the scheduled date, the committee feels that by
entertaining application for re-examination at this later stage may restore the
confidence of the petitioner upon the system to which she belongs.
It is also recommended that in future the college notifies a last date for
entertaining applications for self inspection of answer scripts after publication of
results and allows self inspection following all procedures.
It is further recommended that the college calculates SGPA for each semester
examination and prepares mark sheets of each semester for the concerned examinees
and calculates the Cumulative Grade Point (CGPA) as the average of the SGPAs of all
the four Semester Examinations and shows that in the final mark sheet"
It further appears that the Court vide its order dated 7th June, 2016 requested the Board
of Studies of the College for appointment of external examiner from outside the faculty for the
purpose of re-examination of module 7.1 of the petitioner no. 1. Such exercise was also
undertaken by the College in pursuance of the aforesaid order and pursuant to which the outside
examiner submitted his report dated 29th June, 2016. The relevant portion of the said report
reads thus:
"General Observation
. The command over language is not of the standard of a Post-Graduate
student as observed in Module 7.1. Illustrations of the same are given above for ready
reference.
. Very weak textual knowledge. No evidence of close critical analysis.
. No evidence of cross-referencing with the text.
. Critical views when given at all are superfluous and not arising out of the
discussion; also no critical argument is followed up and developed.
. Structuring note correspondent with question value and candidate has very
poor judgment of the same.
. All the candidate's errors are of a very basic nature that should have been
tackled before enrolment to a P.G. Course in English."
The external examiner has also submitted an award list being the
mark sheet of the petitioner for Module 7.1. The marks awarded are as
follows:
"LADY BRABOURNE COLLEGE, KOLKATA UNIVERSITY OF CALCUTTA
M.A. IN ENGLISH LITERATURE SEM I/SEM II/SEM III/SEM IV EXAMINATION, 2016
-------------------------------------------------------------------------------------
AWARD LIST FOR EXAMINER PAPER MODULE VII 7.1 ROLL...PG/ENG NUMBER REGN Qs No.: & MARKS OBTAINED NUMBER & FULL MARKS YEAR 1304 031-1221- 10(Group A) 3 0037-10 F.M. 8 1(Group B) 5 F.M. 14 5(Group A) 4 F.M. 10 1 (Group A) 4½ F.M. 10 4 (Group D) 3½ F.M. 8 Total ANY CHANGE OR OVERWRITE IN MARKS COLUMN IS TO BE COUNTERSIGNED BY THE EXAQMINER WITH DATE Full Signature of Examiner Sd.Malobika Sarkar 29/06/2016"
The stand of the appellants before the Writ Court was that in her overall carrier the petitioner no. 1/appellant no. 1 had secured high marks in previous examinations and she was under bona fide belief that no reasonable process of evaluation was adopted in examining her answer scripts. Otherwise, she would not have obtained such low level of marks.
Learned counsel for the appellants assailing the order has submitted that the learned single Judge had erred in law in not considering that the father of the appellant no. 1 had moved the respondent no. 4 under the Right to Information Act, 2005 within time on 14th October, 2015 in respect of third semester by which he had sought the following information:
"1. The detailed rules governing the examination process of M.A. in English Literature (Semester System) under your Institution operative for the said course;
2. Details of the system and/or method applied by your Institution to calculate and award marks, percentage of marks, grade, numerical grade point and SGPA to my daughter above named in M.A. in English Literature (Semester System);
3. Copies of all the answer sheets of my daughter above named for all the subjects of all four semesters for the course of M.A. in English Literature (Semester System)."
In response to the aforesaid, the Public Information Officer informed the appellants vide his letter dated 8th December, 2015 thus:
"To Sri Sekhar Roy, P-26/1, Vidyasagar Pally, Silpara, Behala, Kolkata 700 008 Sub: Your letter dated 14.11.2015 issued under Section 6 of the Right to Information Act, 2005.
Dear Sir, We have received your letter dated 14.11.2015 in regard to the above stated subject. That upon going through the contents of your letter, it appears that you are a third party and you have got no connection with our College. That as such after going through your application under Section 6 of the Right to Information Act, 2005, it is hereby rejected upon consideration.
This is for your information and record. Yours faithfully,"
It is urged by the learned counsel for the appellants that the writ Court has erred in law in not considering that the college authority had adopted dilatory tactics only to harass the appellant no. 1 in not notifying the last date for entertaining application for self-inspection of the answer scripts after publication of the result. According to the learned counsel for the appellants the result of the third semester was published on 23rd April, 2015 whereas the application under the Right to Information Act, 2005 was made much within the cut off date of six months from the date of publication of result. It is submitted by the learned counsel for the appellants that the college authorities with mala fide intention denied to supply answer scripts of third semester to the appellants alleging that the same have been destroyed by the college authorities after six months of the publication of the result and, therefore, in the circumstances, the appellants was entitled to get average marks of all the semesters including the third semester of which answer scripts was not available.
It is submitted that in the event the average marks of all the semesters that is the first, second and third semester were taken into consideration, she would have been obtained more than 55% of the marks as average in the third semester and also in overall average marks of fourth semester. Thus she would have been entitled to sit for the NET (National Eligibility Test) examination. But the College Authority had awarded gross average 54.5% marks in her final consolidated mark sheets disqualifying her from appearing in the NET examination for which minimum eligibility criteria was to have passed the Post Graduate examination with 55% marks.
It is lastly argued by the learned counsel for the appellants that in spite of the writ Court's order answer scripts of module 7.1 of third semester has not been provided to the appellant no. 1 and considering that college authorities had expressed their inability to provide the same, the writ Court ought to have allowed the writ petition.
Per contra, learned counsel for the college authorities submits that the documents filed by the respondents before the writ Court have also been produced before this Court by way of supplementary affidavit. It appears from Annexure P/6 of the stay application that the appellant no. 1 had enquired from the college as to when she could expect mark sheet in near future. She on the same date was replied thus:
"GoodMorning maam, We hear that tmrw is d 1st wrking day b4 puja vacation. Cud u kindly tell if we cn xpct our marksheets anytime soon?
We are supposed to get them today. But Principal will not be there today. We will inform you by tonight.
Ok maam Your mark sheets are ready. Collect tomorrow at 1.30 p.m. Ok Thank you maam Parnadi informs your new mrksheet is likely to be delivered by 1 pm tomorrow. If you wish to collect pl come with the one you have by 2. If however the printer does not come you will have to get it after Puja."
The aforesaid texed message on the mobile was communicated by her on the same date i.e. on 9th October, 2015. She was also informed on the same date that she could collect her mark sheet on the next day at 1.30 p.m. It appears that the mark sheet was received on 9th October, 2015. Therefore, since she was informed that she could collect the same on the next day the message was acknowledged from the college authorities. It is apparent that the marks were published on notice board. Admittedly time for preservation of the answer scripts starts from the date of publication of the mark sheet. Accordingly, this period would expire on 10th April, 2016. However, the appellant no. 1 appears to have sought certain corrections in her mark sheet and did appear in the fourth semester and admittedly also moved the respondent no. 4 under the Right to Information Act, 2005 which was beyond the period of six months from the date of publication of the result for seeking examination/re-examination of the answer scripts of the third semester. In fact, perusal of the application made by her father under the Right to Information Act shows that she had not only asked for answer scripts for 3rd semester but of all the semesters, i.e. first semester, second semester, third semester and fourth semester. More than six month's period had elapsed after the publication of the result and copies of first, second and third semester were destroyed and only copies of fourth semester was produced before the Court pursuant to the order of the Court dated 12th July, 2016.
Learned counsel for the respondent nos.3-4 would argue that answer scripts of the third semester have been destroyed only when the application has been moved by the appellants for producing those answer scripts and their allegations that their applications was well within time is vague as the application was not made 'well within time' but much beyond the prescribed time from the date of publication of the result. According to him, admittedly the appellant no. 1 had even taken admission in the fourth semester on the basis of the result of the third semester wherein she alleges certain corrections had been required to be made. Therefore, it cannot be said that her right was denied by any such incorrectness as she could have moved the application within a period of six months from the date of publication of the third semester result.
As regards average marks are concerned, counsel would submit that on re- examination, the appellant no. 1 had failed to get better marks than her marks in third semester examination. If these marks of re-examination are taken into consideration, average marks of the third semester examination of the appellant no. 1 would not have been far better as she would get less than 54.5% marks. The appellant no. 2 had not moved the college well within time under the Right to Information Act for the purpose of supplying copies of answer scripts of module 7.1 of third semester examination of the appellant no. 1, but the said application was moved at much belated stage. The appellant no. 1 could not achieve even the marks obtained by her in the earlier examination of third semester 7.1 module in the re-examination made by the external examiners pursuant to the order of this Court dated 7th June, 2016. It also appears from records that her percentage of marks has been deteriorating. She obtained 92% in ICSE examination, 2008, 91.5% marks in ISC examination, 57% in B.A. (Three years honours) examination, 2013, whereas in the first semester of M.A. in English Literature she obtained 54.5% marks, in the second semester she obtained 51.62% marks and in third semester her percentage of marks was 49%. Only she has been able to get 62.5% marks in the fourth semester examination, which according to the learned counsel for the respondent nos. 3 and 4 was held at home centre and candidates were granted marks liberally.
Accordingly, we do not find any illegality in the order and judgment dated 12th July, 2016.
The appeal is dismissed.
Consequently, the application being CAN 9206 of 2016 stands disposed of.
(Rakesh Tiwari, J.) (Mir Dara Sheko, J.) jb.