Soni Sonkar vs State Of U.P. And 03 Others on 5 October, 2018

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Allahabad High Court

Soni Sonkar vs State Of U.P. And 03 Others on 5 October, 2018

Equivalent citations: AIRONLINE 2018 ALL 5021

The instant writ petition has been filed by the petitioner, who is a student of B.Sc. (Nursing) praying for quashing of clauses V & VI of Press Notification dated 20.5.2016 issued by Controller, Examination Committee, Chhatrapati Sahu Ji Maharaj University, Kanpur. These clauses are extracted below : -

"v. ;fn ewy ewY;kadudrkZ }kjk iznku fd, x, vadksa rFkk nksuksa pSysaat ewY;kdudrkZvksa }kjk fn, x, vadks ds vkSlr dk vUrj iz'ui= ds vf/kdre izkIrkadks ds 15% ls vf/kd ,oa 25% rd ik;k tk,xk rks ewy ewY;kadudrkZ }kjk iznku fd, x, vadksa dks nksuksa pSysat ewY;kadudrkZvksa }kjk fn, x, vadks ls cny fn;k tk,xkA ,slh fLFkfr esa Nk= }kjk tek 'kqYd ls :0 500@& dh dVkSrh dj 'ks"k jkf'k mls okil dj nh tk,xh rFkk ewY;kadudrkZ ds f[kykQ fo'ofo|ky; }kjk psrkouh nh tk ldrh gSA vi. ;fn ewy ewY;kadudrkZ }kjk iznku fd, x, vadksa rFkk nksuksa pSysat ewY;kadudrkZvksa }kjk fn, x;s vadksa ds vkSlr dk vUrj iz'ui= ds vf/kdre izkIrkadksa ds 25% ls vf/kd ik;k tk,xk rks ,slh mRrj iqfLrdk dks ekuuh; dqyifr th }kjk ukfer r`rh; pSysat ewY;kadudrkZ ls ewY;kafdr djk;k tk,xkA ewy ewY;kadu }kjk iznku fd, x, vadks dks rhuks pSyast ewY;kadudrkZvksa }kjk fn;s x;s vadksa ds vkSlr ls cny fn;k tk,xkA ,slh fLFkfr esa Nk= }kjk tek 'kqYd ls :0 500@& dh dVkSrh dj 'ks"k jkf'k mls okil dj nh tk,xh rFkk ewy ewY;kadudrkZ ds f[kykQ fo'ofo|ky; }kjk dBksj dk;Zokgh dh tk ldrh gSA"

The challenge to the aforesaid clauses has been made in context of the petitioner having applied for re-evaluation of his answer book of third paper of Mental Health Nursing of B.Sc. (Nursing) II year Examination 2015-16 held in June 2017. The petitioner was awarded 29 marks in the said paper. As per the challenge evaluation procedure notified by the impugned Press Notification, the copies are again evaluated by two different Examiners and in case, the difference of average marks awarded by the two Examiners is more than 15% of the maximum marks, then alone modification in the marks originally awarded is made. The maximum marks was 75, thus, 15% of it comes to 11.25 marks. The petitioner as a result of evaluation by two Examiners obtained average marks of 40, which results in average increase of 11 marks, which is thus less than 15%. Consequently, the University has refused to carry out change in the marks originally awarded to the petitioner in the said subject.

Learned counsel for the petitioner submitted that the stipulation in clauses V & VI for making alteration in marks only if the ceiling limit of 15% is achieved is illegal and arbitrary. According to him, in case, upon re-evaluation, there is change of even a single mark, the same has to be accepted and the University should accordingly carry out correction in the marks sheet.

On 3.10.2018, the following order was passed : -

"Counsel for the petitioner is granted time to clarify whether third paper of Mental Health Nursing of B.Sc. IInd year examination 2015-16 was a subjective type paper or an objective type paper.

Put up as fresh day after tomorrow i.e. 05.10.2018."

Today, when the matter is taken up, learned counsel for the petitioner admits that the paper in which the petitioner applied for re-evaluation was a subjective type paper and not objective one.

Sri Rohit Pandey, learned counsel appearing on behalf of the respondent University has placed reliance on a judgment of this Court dated 5.1.2018 in Writ C No. 278 of 2018 - Aditi Pandey Versus State of U.P. And 4 others, wherein also the same clauses were challenged but this Court after detailed consideration of the aforesaid clauses repelled the challenge placing reliance on judgment of the Supreme Court in Sayyed Aqueel Arif Versus University of Pune and others, (2003) 12 SCC 724 by observing thus : -

"Though the petitioner has assailed the aforesaid clauses but the learned counsel for the petitioner could not demonstrate that the said clauses were arbitrary or illegal in any manner. More over, it is well settled legal principle that there can be no inherent right for re-evaluation of answer scripts. Re-evaluation can be obtained only if it is permissible under the rules. Providing for incorporation of challenge evaluation marks only if the difference is to the extent of 15% or more of the maximum marks is within the domain of the University and has a rationale behind it which is that no two examiners would provide identical marks on evaluation therefore unless the difference is substantial it cannot be accepted that the earlier evaluation was improper.

The word used "Adhiktam Praptank" has to be read in the context in which it has been used in clause (iv) and (v) of the notification dated 20th May, 2016. Clause (iv) and (v) of the notification uses the words "Prashna Patra Ke Adhiktam Praptank", which means maximum marks obtainable in the question paper. If it was meant to indicate the marks obtained in the paper, then the word "Adhiktam" (maximum) would not have been used. Under the circumstances, since the question paper was for 100 marks, 15% of it would be 15 marks. Therefore only when the difference in the challenge evaluation marks with the original marks is higher by 15 marks the University is required to incorporate the challenge evaluation marks in the result. It may be observed that a similar re-evaluation clause had come before apex court in the case of Sayyed Aqueel Arif v. University of Pune, (2003) 12 SCC 724, where the apex court had also taken a similar view as has been taken here."

Where the questions are subjective type, there is bound to be some variation in the marks awarded by different Examiners, as there is always an element of subjectivity, which comes into play. The object of the impugned clauses is to provide a degree of finality to the marks awarded by an Examiner unless it is patently arbitrary, so much so, that the difference of average marks awarded by two Examiners, upon re-evaluation is more than 15% of the maximum marks. This is keeping in view the principle, as observed in Aditi Pandey that there is "no inherent right of re-evaluation of answer scripts".

In Sayyed Aqueel Arif (supra), the Supreme Court was considering a similar clause of re-evaluation, the relevant part of which is as under : -

"The benefit of the revaluation shall be given to a candidate if the original marks and the marks obtained after revaluation exceed by 10% or more of the maximum marks of the theory paper or papers and only these marks will be accepted by the University and binding on the candidates. However, in extreme cases, the Vice-Chancellor may use his discretion for getting second opinion for revaluation. For the purpose of computing the 10% difference in marks, half per cent of the marks assigned to the paper or a part thereof shall be taken into account and rounded off for next successive higher integer."

In that case, the candidate obtained 84 marks in the subject concerned, which on scrutiny became 88 and on re-evaluation 104 marks. However, since it was less than 10% i.e. 20 marks, no change was made. The Supreme Court concurred with the view of the High Court and observed : -

"7. We are satisfied that the Ordinance was correctly applied to the case of the appellant. Since the difference between the "original marks" within the meaning of clause (2) arrived at as a result of verification, did not exceed 10% of the maximum marks, the appellant was rightly denied the benefit of the revaluation for the purpose of clause (7) of the Ordinance."

Having regard to the above and also the view expressed in Aditi Pandey, this Court does not feel inclined to strike down the impugned clauses. Still, it feels that the limit of 15% imposed by the impugned clauses is on the higher side. Even in the clause considered by the Supreme Court in Sayyed Aqueel Arif (supra), the limit was 10%. In the present Scheme, there is no exception or provision for relaxation in appropriate cases, for example, where the alteration would result in the candidate passing the examination as a whole, as in the instant case. Generally, the Examining Body itself provides guidelines to the Examiners in relation to the manner in which even subjective type answers would be evaluated, to minimise the element of subjectivity. The challenge evaluation procedure, when it provides for re-evaluation by two Examiners and in case the difference is more than 25% by a third Examiner, to a great extent minimises the element of subjectivity in award of marks by different Examiners. In today's world, where competition is getting intense day by day, much depends on even a single mark. However, these are aspects which require consideration by Expert Body i.e. Examining Body, which had framed the impugned guidelines. For the time being, this Court in due deference to the wisdom of the Expert Body, desist from tinkering with the same.

Having said so, this Court still feels that in the peculiar facts of the instant case, the petitioner is entitled to change in marks on basis of the result of re-evaluation. As already noted, upon re-evaluation, there is average increase of 11 marks, which is only fractionally less than 15% of the maximum marks i.e. 11.25. If the petitioner is given benefit of the result of re-evaluation, she gets 29+11= 40 marks. The pass percentage in a subject is 50% of the maximum marks i.e. 38. The petitioner would thus, sail through the examinations.

The impugned clauses do not provide for the manner how fraction of a mark has to be dealt with where 15% of the maximum marks is a fraction as in the instant case. Usually a fraction has to be rounded off to the nearest integer. If this principle is applied, 11.25 would be 11 marks which the petitioner has achieved. The fate of the petitioner cannot be permitted to hang in balance because of the element of subjectivity much beyond her control. Since as a result of re-evaluation, the petitioner has succeeded in getting more than 50% of the maximum marks which is the limit prescribed for passing a subject and has also touched the prescribed 15% limit, this Court is of the opinion that fortuitous circumstances should not be allowed to mar her future prospects; she should be declared Pass.

It is directed accordingly.

The writ petition stands disposed of with a further direction to the Examination Committee of the respondent University to revisit the guidelines framed by it in this regard within eight weeks giving due credence to the aspects noted above. The compliance of the above directions shall be communicated to this Court through the Registrar General.

(Manoj Kumar Gupta, J) Dated: 5.10.2018 AM/-

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Allahabad High Court