Calcutta High Court (Appellete Side)
Somenath Bhowmick vs The State Of West Bengal & Ors on 5 July, 2019
Author: Arindam Mukherjee
Bench: Arindam Mukherjee
IN THE HIGH COURT AT ALCUTTA
CONSTITUTIONAL WRIT JURISDICTION
APPELLATE SIDE
PRESENT:
THE HON'BLE JUSTICE ARINDAM MUKHEREJEE.
W.P. No.2804(W) of 2017.
Somenath Bhowmick
Vs.
The State of West Bengal & Ors.
For the Petitioner : Mr. Bhagbat Chaudhuri,
Mr. Sujay Kumar halder.
... Advocates.
For the State : Mr. SM Samim Ullah.
.... Advocate.
For the Board : Mr. H. K. Bandopadhyay.
.... Advocate.
Heard on : 21.02.2017, 18.09.2018, 14.12.2018,
28.06.2019.
Judgment on : 5th July, 2019.
Arindam Mukherjee, J.:
1) The minor son of the writ petitioner, namely, Joydeep Bhowmick (hereinafter also referred to as the candidate) appeared in the Madhyamik Pariksha (Examination) held in 2016 and was successful in the said exam. The writ petitioner complains about the evaluation of the answer scripts of his son in three (3) subjects i.e. Bengali, History and Geography and prays for re-evaluation of the same and awarding of correct marks upon such evaluation.
2) It is a case of the writ petitioner that his son is a very good student and was a rank holder in his School. After getting the mark sheet the writ petitioner's son found that the marks awarded to the writ petitioner's son in Bengali, History and Geography was much lower than that the writ petitioner's son expected. The writ petitioner's son, therefore, applied for scrutiny of his answer scripts in Bengali, History and Geography as permissible under the rules. On post publication scrutiny, the marks of the petitioner's son in the said three subjects remained unchanged. On finding that the marks have remained unchanged in the post publication scrutiny, the petitioner's son applied for inspection of the answer scripts and for supplying certified true copy of such answer scripts of Bengali, History and Geography. The petitioner's son was given inspection of the answer scripts in the said three subjects and was also provided with the certified true copy of the answer scripts in respect of the said three subjects.
3) On inspection and receipt of the certified true copy of the said three answer scripts, it appeared to the petitioners' son that his answer scripts in the said three subjects were not properly evaluated and as such the marks which he would have ordinarily received on a proper evaluation of the answer scripts were not given to him. Thus, the prayer for re-evaluation has been made.
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4) The learned Advocate for the petitioner referring to the answer scripts of the said three subject, the photocopies of the certified true copies whereof are annexed to the writ petition, contended that on a proper evaluation of the answers given by the petitioner's son in the three subjects, he would have got higher marks than awarded and his marks in the other subjects also suggest so. He also tried to make out a case that some of the questions are in parts and answers have also been given in parts but the marking has not been done on the basis of part wise answers but an overall marks have been awarded. Marks should have been awarded to the answers given to each part of the question separately instead of treating the answers as a whole and having not done so less marks have been awarded. The aggregate of part marks if allotted could have been more than the overall marks for the answer as awarded. He also tried to make out a point that even when a part of the question has been answered correctly and the examiner has given a tick against such answer then also full marks has not been awarded for such correct answer. As an example, he refers to a part question bearing two marks. He submits that despite the answer being correct and the examiner has given a tick against such answer, the marks awarded is one out of two whereas it should have been two out of two. The petitioner's son ought to have been awarded full marks i.e. two out of two marks for such correct answer which cannot be cured by scrutiny but by re-evaluation. Showing these discrepancies, the 3 petitioner's advocate submits that re-evaluation of the answer scripts of the candidate should be made and correct marks on such re-evaluation should be awarded.
5) The learned Advocate appearing on behalf of the West Bengal Board of Secondary Education, the respondent No.4, who also represents respondent No.2 to 3 respectively, being the President and Secretary of the said Board by referring to Regulations 14(1) and (2) of the West Bengal Board of Secondary Education (Examination) Regulations, 2001 contends that re-evaluation of the answer scripts is not permissible in a case of a successful candidate like the petitioner's son. He further contends, even if one equates re-evaluation with the term "re-examination" as provided in Regulation 14(2), the answer scripts of a successful candidate cannot be re-evaluated. Only scrutiny is permitted under the said Regulation and that has been allowed. In fact following the ratio laid down in the judgment reported in 2011(8) SCC 497, the said advocate contends that inspection of the answer scripts has been given and even the certified true copy of the said answer scripts have also been provided.
6) He further submits that marks in respect of the answers written by the petitioner's son in Bengali, History and Geography, answer scripts has been awarded by an examiner, who is an expert by following the procedure adopted by the West Bengal Board of Secondary Education 4 for evaluating the answer scripts. The Board while evaluating the answer scripts in the Examination held on 2016, has adopted a scientific procedure with all checks and balances. The evaluation of the answer scripts of the petitioner's son in the said three subjects has been properly and correctly done and as such there is also no scope of re- evaluation. According to the said advocate even if one accepts for the sake of argument that there is no embargo in the said Regulations in re- evaluation of the answer scripts of a successful candidate then also such exercise is practically impossible as it may lead to innumerable successful candidates asking for re-evaluation which mechanism is not available with the Board. He further submits that there is always a scope of awarding different marks to a particular answer, if the same is evaluated by two different teachers. The Board in order to minimise such difference undergo a procedure. It is also not practically possible to re-evaluate answer scripts of all candidates in respect of an examination like the Madhyamik Pariksha wherein several lakhs of candidates appear in a year, that is why the Regulations have been made so that only scrutiny is permitted for successful candidates. If re- evaluation is allowed, the examiner who will re-evaluate the answer script may even award less marks than that has been awarded. The petitioner in that case will not accept the marks on re-evaluation and it will be then a long drawn dispute.
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7) Before adverting to the case sought to be made out by the respective parties the relevant provisions of the West Bengal Board of Secondary Education (Examination Regulations 2001) (hereinafter referred to as said Regulations) framed in exercise of the powers conferred under the provisions of section 27(2)(d) and (3) of the West Bengal Board of Secondary Education Act, 1963 (hereinafter referred to as said Act) are set out hereunder:-
"Provisions for re-examination and scrutiny - (1) A successful candidate may apply for scrutiny within 30 days from the date of publication of the result through the Head of his institution for one or more answer paper(s) of the particular examination on payment of a fee prescribed by the Board expressly stating that the same is being paid for the purpose of scrutiny. The President may extend the date of submission of application for post-publication scrutiny, if necessary.
(2) An unsuccessful candidate may apply for re-examination within 30 days from the date of publication of result through the Head of his institution for one or more answer paper(s) of the particular examination on payment of a fee prescribed by the Board expressly stating that the same is being paid for the purpose of re-examination.
The President may extend the date of submission of application for post-publication re-examination, if necessary.
(3) An incomplete or erroneous application for post-publication scrutiny or re-examination shall be summarily rejected, and no correspondence shall be entertained in that behalf.
6 (4) The work of scrutiny shall be confined to checking correctness of the total marks awarded, unmarked portion if any, and correctness of transcription of marks in theoretical papers only. It shall not involve re- examination that is a fresh valuation of answer. In case of re- examination, the script will be re-assessed. Neither the candidate nor any one on his behalf shall been entitled to be present during scrutiny/re-examination or shall have any right to inspect the answer- script.
(5) It shall be obligatory on the part of a candidate applying for post- publication scrutiny/re-examination to accept the alternations in marks, if any, after scrutiny.
(6) Application for post-publication scrutiny/re-examinations shall not ensure result of such scrutiny before the date fixed for submitting application for next examination, and unsuccessful candidates shall, in their own interest, submit application form for enrolment for the next examination within the dates specified.
(7) The result of the post-publication scrutiny/re-examination shall be intimated to the candidate concerned through the institution".
8) After hearing the respective parties, considering the materials on record and the judgements cited at the bar, I find that the judgment reported in 2011(8) SCC 497 takes into consideration a judgment reported in 2004 (6) SCC 714 (Pramod Shrivastava Vs. Bihar Public Services Commission). In the said judgement reported in 2004 (6) SCC 714, which is a three bench judgment at paragraph-7, it has been held that in absence of any provision for re-evaluation of the answer books in 7 the relevant Rules, no candidate in an examination has got in right whatsoever to claim or ask for re-evaluation of his marks. The Bench also took into consideration the judgment reported in 1984(4) SCC 27 (Maharashtra State Board of Secondary and Higher Secondary Education v. Paritosh Bhupeshkumar Sheth) and reaffirmed the view taken in the said judgment. The relevant portion of the Pramod Shrivastava judgement (Supra) is set out hereunder for ready reference:-
"We have heard the appellant (writ petitioner) in person and learned counsel for the respondents at considerable length. The main question which arises for consideration is whether the learned Single Judge was justified in directing re-evaluation of the answer-book of the appellant in General Science paper. 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 totalling 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 re- evaluation 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. This question was examined in considerable detail in Maharashtra State Board of Secondary and Higher Secondary Education v. Paritosh Bhupeshkumar Sheth. In this case, the relevant 8 rules provided for verification (scrutiny of marks) on an application made to that effect by a candidate. Some of the students filed writ petitions praying that they may be allowed to inspect the answer- books and the Board be directed to conduct re-evaluation of such of the answer-books as the petitioners may demand after inspection. The High Court held that the rule providing for verification of marks gave an implied power to the examinees to demand a disclosure and inspection and also to seek re-evaluation of the answer-books. The judgment of the High Court was set aside and it was held that in absence of a specific provision conferring a right upon an examinee to have his answer-books re-evaluated, no such direction can be issued. There is no dispute that under the relevant rule of the Commission there is no provision entitling a candidate to have his answer-books re-evaluated. In such a situation, the prayer made by the appellant in the wit petition was wholly untenable and the learned Single Judge had clearly erred in having the answer-book of the appellant re-evaluated".
The above two judgments were considered in a Division Bench judgment of this Court delivered on 18th May, 2017 in FMA 407 of 2015 (Central School Services Commission and Ors. Vs. Tanuj Paul) by which several other appeals along with the said appeal have been disposed of holding that Court should not examine answer sheet or order re-evaluation of the scripts under any compelling reasons in absence of statutory provisions for such remedy. In the Division Bench judgment of this Court, a judgment report in AIR 2009 SC 879 (Sahiti & Ors. Vs. Chancellor, Dr. N. T. R. University of Health Sciences & Ors.) was taken 9 note of. This is also a three bench judgment wherein a portion of paragraph-9 reads as follows:-
"The plea that there is absence of specific provision enabling the Vice- Chancellor to order re-evaluation of the answer scripts and, therefore, the Judgment impugned should not be interfered with, cannot be accepted. Re-evaluation of answer scripts in the absence of specific provision is perfectly legal and permissible. In such cases, what the Court should consider is whether the decision of the educational authority is arbitrary, unreasonable, mala fide and whether the decision contravenes any statutory or binding rule or ordinance and in doing so, the Court should show due regard to the opinion expressed by the authority. In Board of Secondary Education v. Pravas Ranjan Panda and Another (2004) 13 SCC 383, the respondent No.1, i.e., Pravas Ranjan Panda appeared in the High School Certificate Examination, 2003 as a regular candidate. He passed the said examination securing about 90% marks. He filed a Writ Petition under Article 226 of the Constitution alleging that he had answered all the questions correctly without committing any mistake and, therefore, deserved full marks in each paper, but due to carelessness and negligence of the Board in appointing inexperienced and unqualified examiners in certain papers, low marks had been awarded to him due to which he lost his chance of being within the first ten examinees in the HSC Examination, 2003. A prayer was made for re-evaluation of his answer book. The High Court disposed of the petition with a direction to the Board to scrutinize and recheck the answer scripts of examinees securing 90% and above marks in aggregate in HSC Examination 2003 and if there was any change or variation in the marks the petitioner should be informed accordingly. The candidates secured less than 90% of marks in aggregate who had applied for 10 rechecking and readdition of marks in certain answer papers had to be considered in accordance with the resolution of Board for rechecking of marks".
9) It will appear from Regulation 14(1) and (2) that a successful candidate can only apply for "scrutiny" and an unsuccessful candidate can apply for "re-examination". The petitioner's son is a successful candidate and as such on a plain reading of the said Regulations only entitled to scrutiny. However, the said regulation does not say in specific words that a successful candidate is not entitled to seek re- evaluation but by its wordings impliedly over rules the re-evaluation in case of successful candidates.
10) The judgement reported in AIR 2009 SC 879 also took into consideration a judgement reported in 2004 (13) SCC 383 (Board of Secondary Education Vs. Pravas Ranjan Panda) which in turn relied upon Pramod Shrivastava (Supra). The judgement rendered in Sahiti & Ors. (Supra) thus took into consideration the ratio of Pramod Shrivastava (Supra) while considering the subsequent judgement and thereafter arrived at the finding referred to in paragraph-9 thereof.
11) After considering the paragraph-9 of the judgment reported in AIR 2009 SC 879, it appears that "Re-evaluation of answer scripts in absence of specific provision is perfectly legal and permissible but in such cases, what the Court should consider whether the decision of the 11 educational authority is arbitrary, unreasonable, mala fide". In the writ petition, no such case of arbitrariness or unreasonableness or mala fide has been made out. Even the answer scripts, annexed to the writ petition do not suggest such a case. Marks to all answers, have been awarded. If marks are not separately awarded for each part but is awarded for the whole answer, it cannot be said to be either arbitrary or unreasonable or mala fide. Awarding one marks out of two by the examiner even for a correct answer when the question is subjective and not objective type, wherein one has to only tick the correct answer out of the options given, it cannot be said to be either arbitrary or unreasonable or mala fide when one marks out of two is awarded.
12) Considering the judgments referred to hereinabove, I am of the view that Regulation 14(1) & (2) should be read in the line of the observations made by the Hon'ble Supreme Court in the decision in paragraph-7 of the judgment reported in 2004 (6) SCC 714. Even if we give a very liberal consideration to regulation 14 of the 2001 Regulation and hold that there is no specific bar in a successful candidate in asking for re-evaluation then also the judgment reported in AIR 2009 SC 879 is of no assistance to the petitioner as there is no arbitrariness, unreasonableness, mala fide or contravention of any statutory or a binding rule or an ordinance in the instant case as observed above. The petitioner is not entitled to re-evaluation of the answer scripts of his minor son even under the exception curved out in the judgment 12 reported in AIR 2009 SC 879, as discussed above. That apart and in any event the Board is competent to make regulations which relates to matter of policy to conduct the examination. The petitioner's son having appeared in the examination on the basis of the said Regulation cannot now seek re-evaluation contrary to the same.
13) In such circumstances as aforesaid, the writ petition fails and is dismissed without any order as to costs.
Urgent photostat certified copy of this judgment and order, if applied for, be supplied to the parties on priority basis.
(ARINDAM MUKHERJEE, J.) 13