Madhya Pradesh High Court
Pranshu Indurkhya (Minor) vs State Of M.P. And Ors. on 5 January, 2005
Equivalent citations: AIR2005MP152, 2005(2)MPHT95, AIR 2005 MADHYA PRADESH 152, (2005) 2 MPHT 95, (2005) 8 SERVLR 187, (2005) 2 MPLJ 315, (2005) 3 SCT 348
Author: R.V. Raveendran
Bench: R.V. Raveendran, Chief Justice, Shantanu Kemkar
ORDER R.V. Raveendran, C.J.
1. The appellant (a minor represented by his father) is a student who passed the VIII standard Board Examination held in year 2004. The appellant passed the said examination and obtained 80 marks in Hindi, 77 marks in English, 66 marks in Sanskrit, 75 marks in Mathematics, 84 marks in Social Science and 75 marks in Science (out of 100 marks each). According to the petitioner, the marks awarded to him are far below of his expectation. He claims that he had done extremely well in the examination and was expecting not less than 90% in all these papers. He contends that the lesser marks have denied him the benefit of securing rank and scholarship. He, therefore, approached the District Education Officer, Jabalpur for revaluation of the papers, he received a reply that rules do not provide for revaluation and therefore revaluation was not permitted. The appellant sought retotafling. The appellant was informed that on retotalling, there was no change in the result.
2. Therefore, the appellant filed W.P. No. 2451/2004 for revaluation of his answer scripts. The learned Single Judge following the decision of the Supreme Court in Maharashtra State Board of Secondary and Higher Secondary Education v. Paritosh Bhupesh Kumarsheth (AIR 1984 SC 1543) and Neha Indurkhya v. M.P. Board of Secondary Education, Bhopal, 2003(3) M.P.H.T. 311 (DB) = 2003 (3) MPLJ 368, dismissed the petition by order dated 28-7-2004. He assigned two reasons for rejecting the petition :--
(a) The appellant has passed in all the subjects with good marks and the mere fact that the appellant was expecting more marks not a ground for interference.
(b) Where revaluation is not provided for in the rules, the Courts will seek answer scripts and examine them only in rare cases where there is patent injustice and the result shocks in the judicial conscience of the Court.
3. Feeling aggrieved, the appellant has filed this appeal. The appellant contends that the Authority conducting the 8th Standard Examination should provide for revaluation. It is contended that as 8th Standard Examination is only a Division Level Examination and not a State Level Examination, (as in the case of 12th Standard), there should be no bar for revaluation. It is stated that some Universities and Authorities have provided for revaluation and therefore the Authority conducting 8th Standard Examination should also provide for revaluation. Alternatively it is contended that even though there is no provision for revaluation, the High Court can, in appropriate cases direct the production of the answer scripts and have them assessed independently in the interest of justice and fair play. He points out that in several cases, this Court had called for the answer scripts and examined them. He therefore, contends that the learned Single Judge was not justified in rejecting the writ petition without calling for the answer scripts to satisfy himself that there was not error in evaluation. He submits that if the answer scripts are called for, he would be able to demonstrate that he was entitled to at least 90% marks in all the papers.
4. In spite of Courts repeatedly stating that there is no legal right to seek revaluation in the absence of a provision for revaluation, we find that a large number of petitions being filed seeking a direction for revaluation. Lakhs of students appear for the 8th, 10th and 12th Standard Examinations every year. Lakhs of students fail in the examinations or obtain lesser marks than expected by them. Whether revaluation should be provided in the Rules is a matter of academic policy and Courts will not interfere in such matters of policy. It is always open to the body of students and/or their parents to mobilise public opinion and seek a policy change involving introduction of a provision for revaluation, on the ground that such a provision will bring about transparency, apart from preventing complaints regarding arbitrariness, negligence and favouritism. But whether the present policy of not permitting revaluation should be changed, or not, being a matter of policy, any decision thereon can only be taken by the Board/Government conducting the respective examination. Having regard to the number of students who take the examination, the frequency of the examination, the number of students who fail, the number of students, who are likely to seek revaluation if the rules permit it, and the consequences thereof, it is not possible to say that the present policy of not permitting revaluation is arbitrary or unreasonable, so as to invite Court's intervention. Dealing with a similar question the Supreme Court observed thus in Maharashtra State Board of Secondary and Higher Secondary Education v. Paritosh Bhupesh Kumarsheth (AIR 1984 SC 1543) :--
"The High Court has relied upon the fact that the University of Bombay and some other Universities have recently made provisions permitting candidates to demand revaluation. In our opinion, this has little relevant for the purpose of deciding about the legal validity of the impugned regulations framed by the Board. We do not know under what circumstances, the University of Bombay has decided to recognize a right in the examinees to demand a revaluation. As far as the Board is concerned, it has set out in the counter-affidavit the enormity of the task with which it is already faced, namely, of completing twice during each year the process of evaluation and release of results of some 3 lakhs of candidates appearing for the SSC and HSC Examinations to be held in an interval of only a few months from one another. If the candidates are all to be given inspection of their answer books or the revaluation of the answer papers is to be done in the presence of the candidates, the process is bound to be extremely time consuming and if such a request is made by even about ten per cent of the candidates, who will be 30,000 in number, it would involve several thousands of man hours and is bound to throw the entire system out of gear. Further, it is in the public interest that the results of public examinations when published should have some finality attached to them. If inspection, verification in the presence of the candidates and revaluation are to be allowed as of right, it may lead to gross and indefinite uncertainty, particularly in regard to the relative ranking etc. of the candidates, besides leading to utter confusion on account of the enormity of the labour and time involved in the process."
Dealing with the scope of interference in such policy matters by Courts, the Supreme Court held :--
"...... The Court can not sit in judgment over the wisdom of the policy evolved by the Legislature and the subordinate regulation-making body. It may be a wise policy which will fully effectuate the purpose of the enactment or it may be lacking in effectiveness and hence calling for revision and improvement. But any drawbacks in the policy incorporated in a rule or regulation will not render it ultra vires and the Court can not strike it down on the ground that in its opinion, it is not a wise or prudent policy, but is even a foolish one, and that it will not really serve to effectuate the purposes of the Act. The Legislature and its delegate are the sole repositories of the power to decide what policy should be pursued in relation to matters covered by the Act and there is no scope for interference by the Court unless the particular provision impugned before it can be said to suffer from any legal infirmity, in the sense of its being wholly beyond the scope of the regulation-making power of its being inconsistent with any of the provisions of the parent enactment or in violation of any of the limitations imposed by the Constitution .... 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."
Dealing with the contention that students who do very well in the examination, will be highly prejudiced if there is no provision for revaluation, and therefore Courts should interfere in such matters, the Supreme Court, held thus:--
"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 where 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."
Considering the question whether a right to revaluation should be recognised, while examining the validity of a Rule barring revaluation, the Supreme Court held :--
"We are unable to agree with the further reason stated by the High Court that since 'every student has a right to receive fair play in examination and get appropriate marks matching his performance' it will be a denial of the right to such fair play if there is to be a prohibition on the right to demand revaluation and unless a right to revaluation is recognized and permitted there is an infringement of rules of fair play. What constitutes fair play depends upon the facts and circumstances relating to each particular given situation. If it is found that every possible precaution has been taken and all necessary safeguards provided to ensure that the answer books inclusive of supplements are kept in safe custody so as to eliminate the danger of their being tampered with and that the evaluation is done by the examiners applying uniform standards with checks and cross checks at different stages and that measures for detection of malpractice etc. have also been effectively adopted, in such cases it will not be correct on the part of the Courts to strike down the provision prohibiting revaluation on the ground that it violates the rules of fair play."
5. In Neha Indurkhya v. M.P. Board of Secondary Education, Bhopal, 2003(3) M.P.H.T. 311 (DB) = 2003(3) MPLJ 368, a Division Bench of this Court observed :--
"The matter needs to be examined from yet another angle. Lacs of students appear every year in Final Examinations conducted by the respondent Board, for Class X and XII. In addition, thousands of students appear every year in the supplementary examinations for these classes. In the above background, any direction for 'Revaluation of answer papers' of the students seeking such 'Revaluation', the number whereof would certainly be in thousands and thousands, if not in lacs, will not only create practical difficulties for the Board, but also is bound to throw the entire system out of gear."
6. It is no doubt true that in exceptional and rare cases, the High Court in exercise of its writ jurisdiction, can call for the answer scripts and even direct revaluation. But such exercise of power by High Court, is not in recognition of any right to see revaluation, but because a case for exercise of such power under Article 226 is made out. What are those cases ?
6.1. In Madhyamik Shiksha Mandal, Madhya Pradesh, Bhopal v. Kumari Nidhi Shrivastava, (LPA No. 63/1999, decided on 12-104999), a Division Bench of this Court pointed out:--
"We regret that despite the decision of this Court, this course should have been adopted by the learned Single Judge in calling for the copies and getting them re-examined, especially those papers, which are descriptive in nature, which was not warranted except in exceptional cases of malafide or otherwise. Whenever answers are descriptive in nature, the assessment is bound to differ from examiner to examiner and it can not be said that the examination by one examiner was faulty on account of difference of perception of another examiner. If this is permitted, then it will give a blow to the whole Regulation which does not permit revaluation of the copies.
"...... Where some allegations of malafides have been levelled or where the questions are non-descriptive in nature like mathematics Where the answer is one or where objective questions are put and their answer is one, it is understandable. But on perusing the record, it appears that all papers are descriptive in nature like Hindi, English, Sanskrit, Social Science where the perception of each examiner may vary. Such, answers have to be evaluated by the examiner and marks are awarded according to the perception of that examiner and it is always possible that when another examiner examines the same copies, his perception may not be same as that of the earlier one. In such process, there is bound to be difference of perception in marking. Therefore, there was no justification in calling for the copies from the M.P. Board of Secondary Education and getting them revalued by another examiner."
6.2. In Madhyamik Shiksha Mandal, Madhya Pradesh, Bhopal v. Vivek Rathore (LPA No. 80/1999, decided on 1240-1999), after referring to the decision of Kumari Nidhi Shrivastava (supra), a Division Bench of this Court observed as follows :--
"Courts should not normally call for answer books for revaluation. This is not permissible under the Regulations. However, in exceptional cases, it is always open to discretion of the Court, but this has to be exercised very sparingly and in very rare cases."
6.3. In Board of Secondary Education, Madhya Pradesh, Bhopal v. Rajiv Gupta (LPA No. 295/2001, decided on 22-6-2004), another Division Bench of this Court has held as follows :--
"As a general rule, the Court has no power to order revaluating of the paper since the rules do not provide for revaluation. However, in extra-ordinary cases where the student is bright and where injustice has been done in the case of evaluation of the marks specially in subjects like Mathematics and Science, it is sometimes open to the Court to have a look at the answer-sheet and compare with the model answers papers and if there are gross discrepancies in awarding marks, it is always open to the Court to direct the Board to revaluate the marks."
7. The principles in regard to revaluation may therefore be summarised thus:--
(a) A student has no right to seek revaluation of an answer-script unless the rules governing the examination specifically provide for revaluation. A provision for 'scrutiny' or 'retotalling' of marks or 'rechecking the results' in the Rules does not entitle a student to seek re-Valuation.
(b) Where the rules do not provide for revaluation, the High Court will not normally direct the production of the answer scripts for its scrutiny or order revaluation. But in rare and exceptional cases where malafides or tampering is made out, or where injustice has been caused on account of gross negligence, the Court may direct revaluation in exercise of its jurisdiction under Article 226 of the Constitution.
(c) Ascertainment of malafides and tampering depends on facts of the case and for that purpose, if necessary, the answer script may be summoned.
(d) Ascertainment of "gross negligence resulting in injustice" is a more difficult exercise. A student who has consistently secured very high marks in a subject in the last few years examinations, is shown to have failed in such subject, the Court may consider it to be a prima facie evidence of such negligence and call for the answer scripts. The mere fact that a student feels that he deserved more marks or alleges negligence, can not be a ground to call for answer scripts. On securing the answer-script, the Court may examine it or take the assistance of a qualified teacher to examine it. If the Court finds any gross negligence resulting in injustice which shocks its judicial conscience, it may direct revaluation.
(e) But change in marks on account of perceptional differences in assessment can not be a ground for re-valuation. Different examiners may evaluate the same answers differently resulting in lesser or higher marks being awarded. Re-valuation is not to be ordered merely because another valuer is of the view that the marks should have been different. In traditional examinations where the purpose is to test the knowledge, grammar, logic or reasoning, the perceptions about the answers may vary from examiner to examiner. (Of course where the examination is of objective type, where the student is merely to mark 'yes' or 'no', or choose one of the multiple answers, there can not be any difference in valuation.)
(f) While fairness in examinations is impliedly assured by the Board, exactness in valuation in individual cases can neither be assured nor be claimed. Certain margin of human error, over- sight, and perceptional difference is part of the valuation system, where thousands or lacs of answer scripts are evaluated by hundreds or thousands of evaluaters. Therefore, even where the Court secures the answer script and examines it or gets it examined by an independent teacher, re-valuation should not be ordered merely because there is some difference in valuation or because one or two answers have not been valued or have been wrongly valued. To repeat, malafides or tampering or gross negligence (and not small or negligible errors or perceptional changes) is a condition precedent for ordering re-valuation.
8. On applying the said principles, we are clear that the appellant in this case is not entitled to seek production of answer-scripts or revaluation. The appellant has not made out any malafides or tampering. The appellant has passed with an average 76% marks. The fact that he may get a few more marks, on revaluation, is not a ground for summoning the answer script and order re-valuation. Where the student has already secured a high percentage of marks, there is no case for 'gross negligence resulting in injustice'. Courts should not be swayed by sympathy and rhetoric in such matters. As observed by the Supreme Court 'pragmatism' and not 'idealism* should be the basis for interference in such matters.
9. We, therefore, find no reason to entertain the appeal. The appeal is dismissed.