Gujarat High Court
Namita Chandrahas Gupta vs Gujarat National Law University on 24 June, 2014
Author: Harsha Devani
Bench: Harsha Devani
C/SCA/8168/2014 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO.8168 of 2014
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE HARSHA DEVANI
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1 Whether Reporters of Local Papers may be allowed to see
the judgment?
2 To be referred to the Reporter or not?
3 Whether their Lordships wish to see the fair copy of the
judgment?
4 Whether this case involves a substantial question of law as
to the interpretation of the Constitution of India, 1950 or any
order made thereunder?
5 Whether it is to be circulated to the civil judge?
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NAMITA CHANDRAHAS GUPTA....Petitioner(s)
Versus
GUJARAT NATIONAL LAW UNIVERSITY....Respondent(s)
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Appearance:
MR DC DAVE, SR. ADVOCATE with MR PA JADEJA, ADVOCATE for the
Petitioner(s) No.1
MR SN SHELAT, SR. ADVOCATE with MRS DHARMISHTA RAVAL,
ADVOCATE for the Respondent(s) No.1
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CORAM: HONOURABLE MS. JUSTICE HARSHA DEVANI
Date : 24/06/2014
ORAL JUDGMENT
1. Rule. Ms. Dharmishta Raval, learned advocate waives service of notice of rule on behalf of the respondent.
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2. By this petition under Article 226 of the Constitution of India, the petitioner seeks the following substantive relief:-
"20. Looking to the facts and circumstances of the case, the Petitioner most respectfully prays that;
(A) This Hon'ble Court may kingly be pleased to issue a writ of mandamus and/or any other appropriate writ order or direction commanding the Respondent to assess afresh the OMR Answer Sheet of the Petitioner for Common Law Admission Test (CLAT) -
2014 on the basis of Question Booklet Series B provided to the Petitioner in place of Question Booklet Series A mentioned inadvertently by the Petitioner on her OMR Answer Sheet and thereupon, be pleased to direct the Respondent to declare the result of the Petitioner accordingly afresh placing the Petitioner in the order of merit accordingly afresh for the purpose of admission to National Law University for under graduate course in the discipline of law for the academic year 2014-2015."
3. It appears that, in all, there are fourteen National Law Universities across the nation including the respondent University. All these National Law Universities are engaged in imparting education in the discipline of law at the level of graduation and post-graduation. Admissions to all these National Law Universities in various courses offered by them are governed by a common entrance test called Common Law Admission Test (CLAT). All these National Law Universities have jointly evolved a practice whereby one of these fourteen Universities, by rotation, acts as an organising University for conducting the Common Law Admission Test. Accordingly, for the year 2014, the respondent came to be appointed as the organising University by rotation for the Common Law Admission Test.
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4. The petitioner herein appeared in the 12 th standard examination in the Commerce Stream from Maharashtra State Secondary and Higher Secondary Education Board and was desirous of pursuing a career in the discipline of law. She, therefore, decided to appear at the Common Law Admission Test (CLAT) - 2014 to be conducted by the respondent University. The petitioner with a view to appear in the Common Law Admission Test, 2014 completed the requisite formalities for appearing at the said test and was issued an Admit Card for the said test for the Undergraduate Programme in the discipline of law. She, thereafter, appeared in the Common Law Admission Test which was conducted on 11 th May, 2014, the result whereof was declared on 31st May, 2014. However, since there was some error in respect of the same, a notification came be issued withdrawing the results so declared and the final result came to be declared on 6 th June, 2014. Upon declaration of the results, it was revealed that the petitioner had scored 14.50 marks out of 200 marks and was placed in the order of merit at Serial No.29011. Since the result of the petitioner was not as per her expectation, keeping in mind her performance at the above test, the petitioner opted for physical verification of her answer-sheet. As per the system evolved by the respondent, it is permissible for a candidate appearing in the test to request for physical verification of his/her answer-sheet. In view of the said practice, the request of the petitioner for physical verification was acceded to and the petitioner was accorded an opportunity of physical verification of her answer-sheet on 8th June, 2014 at Gandhinagar. During the course of physical verification, it was revealed that there was an error in assessing the answer-sheet of the petitioner attributable to a mistake committed by the Page 3 of 28 C/SCA/8168/2014 JUDGMENT petitioner in mentioning the Question Booklet Series provided to the petitioner.
5. It appears that as per the methodology followed by the respondent for the Common Law Admission Test, the question paper for the said test has 200 multiple choice questions, each having one mark. Thus, the question paper for the said test was, in all, for 200 marks. For the purpose of ruling out scope for any unfair practice by the candidates appearing in the test, the respondent appears to have decided to have the question papers for the said test in sets of four, with each set having the same questions which are chronologically arranged differently from the rest. Along with the question paper, the concerned candidate was provided with an answer-sheet called the Optical Mark Recognition Sheet or Optical Mark Reading (OMR) Sheet. In the OMR answer-sheet, the concerned candidate was required to enter his/her roll number, Question Booklet Number and Question Booklet Series in the space provided for the same. The Question Booklet Series refers to one of the four sets of the question paper. It means that if the concerned candidate is given Set 'A' of the question paper, he/she shall have to mention the same Question Booklet Series in the OMR answer- sheet. Since the OMR answer-sheet of the concerned candidate were to be assessed through computerised process on the basis of the software for the same, the assessment of the OMR answer-sheet would depend upon the mentioning of Question Booklet Series in the OMR answer-sheet in the space provided for the same. By way of an illustration, if the concerned candidate was provided with question paper set bearing Series 'A', then in that case, his/her OMR answer-sheet would be Page 4 of 28 C/SCA/8168/2014 JUDGMENT assessed on the basis of the series mentioned by the concerned candidate on the OMR answer-sheet, through a computerised process with the aid of software having correct answers for the questions chronologically set in such set of question paper.
6. During the course of physical verification by the petitioner of her OMR sheet, it was revealed that though the petitioner was provided with the question booklet having Series 'B', the petitioner had inadvertently mentioned Series 'A' as Question Booklet Series and, therefore, the OMR answer- sheet of the petitioner came to be assessed through a computerised process based upon software designed for assessing the question paper having Set 'A' as its series. Thus, though the petitioner had answered majority of the questions correctly, she did not get the benefit of the same. In the OMR answer-sheet, insofar as the Question Booklet Number was concerned, the same was entered correctly as 720790.
7. The petitioner, therefore, through her father addressed a detailed representation to the respondent through the Convener of Core Committee of Common Law Admission Test on 8th June, 2014 which was followed by another detailed representation dated 9th June, 2014 inter alia requesting the respondent to reassess the OMR answer-sheet of the petitioner keeping in mind Question Booklet Series 'B' which was provided to the petitioner instead of Question Booklet Series 'A' which was mentioned by the petitioner in her OMR answer- sheet.
8. Since there was no response to the above Page 5 of 28 C/SCA/8168/2014 JUDGMENT representations, the petitioner's father addressed another e- mail dated 9th June, 2014 to the respondent through the Convener of its Core Committee seeking an appropriate intervention in the matter at the earliest. Since nothing was heard from the respondent, the petitioner has approached this court by way of the present petition.
9. On 13th June, 2014, this court had, by an interim arrangement, directed thus:
"3. It is an admitted position that the Online Counselling for Admission in the Five Years' Undergraduate Course in Law is underway and is likely to be over by 15th of June, 2014. Under the circumstances, having regard to the urgency in the matter and in the peculiar facts of the case, by way of a totally interim arrangement, the respondent is directed to verify, on the basis of the averments made in paragraph 13 of the memorandum of petition, as to whether the petitioner was provided with the Question Booklet having Series-B. If that be so, the respondent shall physically evaluate the OMR Answer Sheet of the petitioner. Such exercise shall be carried out by the respondent on 14 th June, 2014 and the respondent shall inform the petitioner about such marks via email. The petitioner shall be permitted to present such marks as given by the respondent pursuant to the aforesaid exercise for the purpose of counselling only. The entire exercise shall be subject to the final outcome of the petition. Since, it may not be possible for the respondent to state the merit number of the petitioner, the same shall not come in the way of the petitioner in the counselling process. The issuance of fresh marks pursuant to the direction by this Court shall not create any right in favour of the petitioner, nor shall this order be treated as a precedent in any other matter.
4. It is clarified that this order is passed in the peculiar facts of the present case, without prejudice to the rights and contentions of both the parties, keeping in view the urgency of the matter and the fact that the petitioner has approached this Court before counselling is over.Page 6 of 28
C/SCA/8168/2014 JUDGMENT Stand over to 17th June, 2014."
10. Mr. Dhaval Dave, Senior Advocate, learned counsel for the petitioner submitted that upon declaration of the CLAT result, since the petitioner had scored very low marks as compared to her expectations, she had applied for physical verification which revealed that she had, due to inadvertent mistake, marked her OMR sheet as an 'A' series booklet instead of 'B'. It was pointed out that thus, such mistake was detected at the earliest point of time when it was possible for the respondent to rectify the same without prejudice to any of the candidates and that in the absence of any rule negating evaluation, the respondent ought to have made a fresh assessment of the petitioner's OMR answer sheet. It was submitted that in the present case, the only thing which is to be rectified is to give marks to the petitioner by considering her OMR sheet on the basis of 'B' series booklet and hence, there is no question of re-evaluation and that physical verification of answer-sheets is meant for this very purpose. It was argued that at the very inception, the mistake was noticed and the nature of the mistake was a bonafide inadvertent one. It was, therefore, easily possible for the respondent to correct that mistake at the relevant time which would have obviated any subsequent complications. It was further submitted that by assigning marks to the petitioner as per the correct booklet series viz. 'B', the petitioner does not wrongfully steal a march over anyone but she is only placed in her correct position in the merit list.
10.1 Referring to the instructions regarding OMR answer- sheet as contained in the Common Law Admission Test (CLAT) - 2014, Instructions to Candidates (Under-Graduate Courses), it Page 7 of 28 C/SCA/8168/2014 JUDGMENT was pointed out that Clause 6 thereof provides that darkening the wrong circle or keeping it blank for "Question Booklet Series" shall lead to wrong evaluation of all questions and candidate shall not get marks even for the correct answers. It was submitted that the said provision cannot be construed to mean that even in case of an inadvertent mistake, the concerned student would be penalised. It was submitted that in any case these are instructions to students for filling up the OMR sheet and cannot be equated with rules. It was pointed out that according to the respondents, the request for assessment of OMR sheet would amount to re-
evaluation/reassessment to submit that re-evaluation/ reassessment presupposes previous assessment and evaluation, where the grievance of the student would be confined to non-assessment/wrong assessment of particular questions. Whereas this is a case where in effect and substance there is no assessment inasmuch as the assessment, (may be, due to mistake on the part of the petitioner) with reference to an answer key meant for Question Booklet Series 'A' when the petitioner's Question Booklet Series was 'B', is not assessment in the eye of law and the proper answer key is required to be applied and accordingly, all that the petitioner says is that the respondents who have the answer key should apply the correct answer key as per the question booklet series furnished to the petitioner. In support of his submissions, the learned counsel placed reliance upon the decision of the Supreme Court in the case of Secretary, W.B. Council of Higher Secondary Education v. Ayan Das, (2007) 8 SCC 242 for the proposition that courts normally should not direct the production of answer scripts to be inspected by the writ petitioners unless a case is made out to Page 8 of 28 C/SCA/8168/2014 JUDGMENT show that either some question has not been evaluated or that evaluation has been done contrary to the norms fixed by the examining body. For example, in certain cases, examining body can provide model answers to the questions. In such cases, the examinees satisfy the court that model answer is different from what has been adopted by the Board. That though the same would be a rarity, it can be done in exceptional cases. Mr. Dave submitted that if something is palpably wrong, the court can always interfere. It was urged that the petitioner does not seek substitution of the answer key but only prays that the correct answer key be applied. According to the learned counsel, it was not material as to who committed the mistake as this is not a case where the wrong series was deliberately mentioned nor is there any mens rea on the part of the petitioner. It was contended that the question of penalising a student would arise if something is done with mischief in mind with a view to unduly gain something or where the mistake is detected very belatedly and it is not possible to make amends at that stage. Under the circumstances, the respondent is not justified in taking a pedantic stand carrying out a fresh assessment of the petitioner's answer-sheet.
10.2 Next, it was submitted that the instructions regarding OMR sheet are in the nature of administrative instructions and the scope of interference would depend upon the irrationality of the decision. In support of such submission, the learned counsel placed reliance upon the decision of the Supreme Court in the case of Jayrajbhai Jayantibhai Patel v. Anilbhai Nathubhai Patel, (2006) 8 SCC 200, for the proposition that the power of judicial review may not be exercised unless the administrative decision is illogical or Page 9 of 28 C/SCA/8168/2014 JUDGMENT suffers from procedural impropriety or it shocks the conscience of the court in the sense that it is in defiance of logic or moral standards but no standardised formula, universally applicable to all cases, can be evolved. Though judicial restraint, albeit self-recognised, is the order of the day, yet an administrative decision or action which is based on wholly irrelevant considerations or material, or excludes from consideration the relevant material, or it is so absurd that no reasonable person could have arrived at it on the given material, may be struck down. It was submitted that the action of the respondent is in defiance of logic, inasmuch as, nothing has been pointed out as to what prejudice could be caused if the petitioner's OMR sheet is assessed on the basis of 'B' Question Booklet Series. It was pointed out that in the entire affidavit-in-reply there is not even a whisper as to what fruitful purpose the respondents seek to achieve by not considering the case of the petitioner. Reliance was placed upon the decision of the Supreme Court in the case of Board of Secondary Education v. D. Suvankar, (2007) 1 SCC 603, for the proposition that the scope for interference in matters of evaluation of answer papers is very limited. For compelling reasons and apparent infirmity in evaluation, the court steps in. It was submitted that there is no direct rule speaking about re-evaluation and that even if the request of the petitioner is considered as re-evaluation, it should not deter the respondent from correcting the bonafide mistake. It was, accordingly, urged that the petition deserves to be allowed and the petitioner is required to be allotted preference in respect of her choice of university in consonance with the marks that she has obtained.
11. Opposing the petition, Mr. S.N. Shelat, Senior Page 10 of 28 C/SCA/8168/2014 JUDGMENT Advocate, learned counsel for the respondent submitted that the present petition relates to the answer contained in the OMR sheet. It was submitted that in terms of what had been filled in by the petitioner in her OMR sheet, the assessment was made and she was given 14.5 marks. Hence, the submission that there is no evaluation is contrary to the record. It was argued that the assessment has been done as is required in accordance with the rules. However, the petitioner now wants correction of the mistake committed by her in the OMR answer-sheet which would amount to re-evaluation as this is not the first time that the evaluation has been carried out. Referring to paragraph 12 of the memorandum of petition, whereby the petitioner seeks a direction to the respondents to assess afresh the OMR Answer Sheet of the petitioner on the basis of Question Booklet Series B, it was submitted that the same clearly implies that there is assessment and the petitioner now seeks reassessment. It was submitted that in the absence of any provision for reassessment, the matter is not justiciable before this court. It was contended that if the court were to consider the grant of such relief in the absence of any provision in law, the court would be substituting its own directions which may not be justified in law. It was urged that there are several candidates who have committed bonafide mistakes like documents not being submitted in time, filling in wrong category of seat, etc. If the petitioner's case is considered, the cases of all such candidates would also be required to be taken into consideration.
11.1 Reliance was placed upon the decision of the Supreme Court in the case of Maharashtra State Board of Secondary and Higher Secondary Education and Page 11 of 28 C/SCA/8168/2014 JUDGMENT another v. Paritosh Bhupesh Kumarsheth, AIR 1984 SC 1543, for the proposition that 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 re-evaluation 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. Far from advancing public interest and fair play to the other candidates in general, any such interpretation of the legal position would be wholly defeasive of the same. That 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.
11.2 Reliance was also placed upon the decision of the Supreme Court in the case of Pramod Kumar Srivastava v. Chairman, Bihar Public Service Commission, Patna and others, (2004) 6 SCC 714, wherein the court observed that 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 is any mistake in the totalling of marks of each question and noting them correctly on the first cover page of the answer- book. 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 Page 12 of 28 C/SCA/8168/2014 JUDGMENT re-evaluation of his marks. The decision of the Supreme Court in the case of H.P. Public Service Commission v. Mukesh Thakur, AIR 2010 SC 2620, was cited for the proposition that the issue of re-evaluation of answer book is no more res integra. This issue was considered at length by the Supreme Court in Maharashtra State Board of Secondary and Higher Secondary Education v. Paritosh Bhupesh Kumarsheth (supra) wherein the court rejected the contention that in the absence of the provision for re-evaluation, a direction to this effect can be issued by the court. The court further held that even the policy decision incorporated in the rules/regulations not providing for rechecking/verification/re-evaluation cannot be challenged unless there are grounds to show that the policy itself is in violation of some statutory provision.
11.3 The decision of the Supreme Court in the case of Secretary, All India Pre-medical/Pre-dental Examination, C.B.S.E. v. Khushboo Shrivastava, 2011 (11) JT 648, was cited wherein the bye-laws of the All India Pre-Medical/Pre- Dental Entrance Examination, 2007 conducted by the CBSE did not provide for re-examination or re-evaluation of answer- sheets. Hence, the appellants therein could not have allowed such re-examination/re-evaluation on the representation of the first respondent. The court was of the view that the High Court could not have substituted its own views for that of the examiners and awarded two additional marks to the first respondent for the two answers in exercise of powers of judicial review under Article 226 of the Constitution as these are purely academic matters.
11.4 Reliance was placed upon the decision of the
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Supreme Court in the case of Karnataka Public Service Commission and others v. B.M. Vijaya Shankar, AIR 1992 SC 952, wherein the court after referring to the general instructions to the candidates observed that observance of the instructions as regards writing of roll number was mandatory and its disregard was punishable. The instruction was not observed by some of the candidates and the Commission did not subject these answer sheets to evaluation. The court held that such instructions are issued to ensure fairness in the examination. In the fast deteriorating standards of honesty and morality in the society the insistence by the Commission that no attempt should be made of identification of the candidate by writing his roll number anywhere is in the larger public interest. It is well known that the first page of the answer book on which the roll number is written is removed and a fictitious code number is provided to rule out any effort of any approach to the examiner. Not that a candidate who has written his roll number would have approached the examiner. He may have committed a bona fide mistake. But that is not material. What was attempted to be achieved by the instruction was to minimise any possibility or chance of abuse. Larger public interest demands insistence of observance of instructions rather than its breach. It was further held that competitive examinations are required to be conducted by the Commission for public service in strict secrecy to get the best brains. Public interest requires no compromise on it. Any violation of it should be visited strictly. It was, accordingly, urged that even administrative instructions are required to be strictly complied with and violation thereof is required to be visited strictly.
11.5 Upon a query by the court as to what was the
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purpose behind permitting physical verification, it was
submitted that some students may doubt as to whether the OMR sheet on the basis of which he has been given marks is his own sheet. It was submitted that having regard to the facts of the case, the grounds based upon Article 14 of the Constitution of India would not be available to the petitioner. It was contended that an innocent mistake may not be a ground because there are ample opportunities for the candidates to verify the procedure which is put on the website a week prior to the tests. It was, accordingly, urged that in absence of any provision for re-evaluation or reassessment, the relief prayed for in the present petition cannot be granted and as such, the petition deserves to be dismissed.
12. In rejoinder, Mr. D.C. Dave, learned counsel for the petitioner submitted that as regards the say of the respondent that physical verification is carried out because a student may doubt whether he has been given marks on the basis of his OMR sheet, each and every OMR is placed on the website so a student can easily verify his signature thereon. It was submitted that the decision of the Supreme Court in the case of Pramod Kumar Srivastava v. Chairman, Bihar Public Service Commission (supra) deals with a matter at the stage of scrutiny which can be compared with physical verification. It was submitted that the petitioner only seeks correction of a mistake committed by her which has resulted in wrong evaluation and would not amount to reevaluation. It was urged that there is a clear distinction between re-evaluation and correction of a bonafide mistake, and that merely because others who have committed mistakes have not approached this court does not mean that the petitioner is not entitled to Page 15 of 28 C/SCA/8168/2014 JUDGMENT the grant of the relief prayed for. Reliance was placed upon the decision of the Supreme Court in the case of Sahiti v. Dr. N.T.R. University of Health Sciences, (2009) 1 SCC 599 and more particularly, paragraph 32 thereof. It was submitted that the conduct of the respondent in not exercising its inherent powers for correcting the bonafide mistake made by the petitioner, is arbitrary and unreasonable.
13. In the backdrop of the facts and contentions noted hereinabove, the sole question that arises for consideration is as to whether the petitioner is entitled to evaluation/re- evaluation of her OMR Answer Sheet on the basis of Question Booklet Series 'B' in place of Question Booklet Series 'A' as mentioned by her on the OMR sheet?
14. As noted hereinabove, the facts are not in dispute. The petitioner appeared in the Common Law Admission Test - 2014. However, in her OMR answer-sheet, instead of darkening the circle meant for Question Booklet Series 'B', she had darkened the circle meant for Question Booklet Series 'A'. Consequently, her entire OMR answer-sheet was evaluated on the basis of Question Booklet Series 'A' when, in fact, the Question Booklet Series allotted to the petitioner was of series 'B'. A perusal of the Common Law Admission Test - Instructions to Candidates (Under-Graduate Courses) reveals that the candidate after verification of question booklet is required to enter his roll number, Question Booklet Number and Question Booklet Series in the space provided on the OMR answer-sheet with black ballpoint pen and shade the relevant circles with black ballpoint pen. In clause (6) under the heading "Instructions regarding OMR Answer Sheet", it is provided that Page 16 of 28 C/SCA/8168/2014 JUDGMENT darkening the wrong circle or keeping it blank for "Question Booklet Series" shall lead to wrong evaluation of all questions and candidate shall not get marks even for the correct answers. It is the case of the respondent that the petitioner having darkened the wrong circle for question booklet series, her questions have been evaluated accordingly, and that she is not entitled to get the marks corrected on the basis of Question Booklet Series 'B'; whereas according to the petitioner, the rule cannot be construed to mean that even in case of an inadvertent mistake, the marks cannot be corrected.
15. It may be noted that there are no rules either providing for reevaluation or reassessment of the OMR answer sheets, nor is there any specific rule prohibiting the same. The Supreme Court in the case of Maharashtra State Board of Secondary and Higher Secondary Education v. Paritosh Bhupesh Kumarsheth (supra) was dealing with a case where the regulations provided that any candidate who has appeared at the Higher Secondary Certificate Examination may apply to the Divisional Secretary for verification of marks in any particular subject. The verification will be restricted to checking whether all the answers have been examined and that there has been no mistake in the totaling of marks in each question in that subject and transferring marks correctly on the first page of the answer-book and whether the supplements attached to the answer book mentioned by the candidate are intact. No evaluation of the answer-book or supplements shall be done. The constitutional validity of the said provision was under challenge. The Supreme Court while upholding the validity of the regulation held that it is exclusively within the province of the legislature and its delegate as to what principle Page 17 of 28 C/SCA/8168/2014 JUDGMENT or policy would best serve the objects and purposes of the Act. It is exclusively within the province of the legislature and its delegate to determine, as matter of policy how the provisions of the Statute can best be implemented and what measures, substantive as well as procedural would have to be incorporated in the rules or regulations for the efficacious achievement of the objects and purposes of the Act. The court further held that it is in public interest that the results of public examinations when published should have some finality attached to them. If inspection, verification in the presence of candidates and re-evaluation are allowed as of right, it may lead to gross and indefinite uncertainty, particularly in regard to the relative ranking of the candidates, besides leading to utter confusion on account of enormity of the labour and time involved in the process.
16. In Pramod Kumar Srivastava v. Chairman, Bihar Public Service Commission (supra), the Supreme Court held thus:
"7. 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-Page 18 of 28
C/SCA/8168/2014 JUDGMENT 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 and another v. Paritosh Bhupesh Kumarsheth and others, AIR 1984 SC 1543. In this case, the relevant 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 writ petition was wholly untenable and the learned single Judge had clearly erred in having the answer-book of the appellant re-evaluated.
8. Adopting such a course as was done by the learned single judge will give rise to practical problems. Many candidates may like to take a chance and pray for re- evaluation of their answer-books. Naturally, the Court will pass orders on different dates as and when writ petitions are filed. The Commission will have to then send the copies of individual candidates to examiners for re-evaluation which is bound to take time. The examination conducted by the Commission being a competitive examination, the declaration of final result will thus be unduly delayed and the vacancies will remain unfilled for a long time. What will happen if a candidate secures lesser marks in re- evaluation? He may come forward with a plea that the marks as originally awarded to him may be taken into consideration. The absence of clear rules on the subject may throw many problems and in the larger interest, they must be avoided."Page 19 of 28
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17. The question that arises for consideration is as to whether what the petitioner is seeking can be said to be re- evaluation of her answer sheet. As discussed in the above decision in the case of Pramod Kumar Srivastava (supra) there was a provision for scrutiny only where the answer-books were seen for the purpose of seeing whether all the answers given by a candidate have been examined and whether there is any mistake in totalling the marks of each question and noting them correctly on the first cover page of the answer book. In the said case, no mistake was found in the scrutiny and the candidate sought reevaluation of the answer-books, which claim was repelled by the court. In the present case, the petitioner during the course of physical verification which is akin to scrutiny found that there was an apparent mistake on her part in noting down the series of her Question Booklet which had resulted in her entire OMR sheet being assessed on a wrong basis. Such mistake is also admitted by the respondent University, because on the basis of the number of the Question Booklet provided to the petitioner, it is found that she had been given a "B" series Question Booklet though in her OMR sheet she had mentioned "A" series. What the petitioner seeks is evaluation of her answer sheet on the basis of the correct Question Booklet series.
18. In Secretary, All India Pre-medical/pre-dental Examination, C.B.S.E. v. Khushboo Shrivastava (supra), the respondent candidate has sought re-evaluation and rechecking of her answer-sheets and to re-total her marks. In the present case, strictly speaking, it cannot be said that the petitioner seeks re-evaluation of her answer-sheet. She only says that by way of a bonafide, inadvertent mistake, she has shown her Page 20 of 28 C/SCA/8168/2014 JUDGMENT answer-sheet to be of 'A' series though admittedly, it was an answer-sheet of 'B' series. It is not the case of the petitioner that any particular answer in the answer-sheet has been incorrectly assessed and that the same is to be corrected. The case of the petitioner, plain and simple, is that though she was given a 'B' series Question Booklet she has, on account of a mistake on her part, darkened the circle 'A' instead of 'B' and hence, her entire answer-sheet was assessed on the basis of an 'A' series Question Booklet resulting in her getting only 14.5 marks instead of 139.5 marks. Thus, what is sought to be rectified is a mistake committed by the petitioner which results in catastrophic consequences for her. In this regard, as is apparent from the affidavit-in-reply filed by the respondent University, the fact that the petitioner was allotted Question Booklet 'B' is not in dispute. Also the fact that she had darkened the circle 'A' on her OMR sheet instead of 'B' is not in dispute. The case of the University is that despite the fact that it was the petitioner who had committed a fundamental gross mistake, she now seeks a direction to the respondent to assess her OMR answer-sheet on the basis of the Question Booklet Series 'B'.
19. While it is true that the predicament faced by the petitioner is of her own making, the question that arises for consideration is as to whether for one silly, bonafide mistake, she is to be penalised to such an extent that though she has actually scored 139.5 marks, she should end up with being given 14.5 marks as she had incorrectly marked the type of answer-sheet. Evidently, this is not a matter where a mark or two is at stake. Here the entire career of a student is at stake and the difference in marks is more than a 100 out of a total of Page 21 of 28 C/SCA/8168/2014 JUDGMENT 200 marks. Moreover, even the respondents admit that the petitioner has committed a mistake and that her Question Booklet Series was 'B'. Under the circumstances, in the opinion of this court, the respondents cannot be permitted to adopt such a hyper-technical approach, that though the petitioner has actually secured 139.5 marks on the basis of her performance in the CLAT, because of the mistake committed by her, she should rest satisfied with the marks given to her by assessing her OMR answer-sheet on the basis of Question Booklet Series 'A'. In future, to obviate such mistakes, the University may issue instructions to invigilators to verify whether the students have entered the correct booklet series. However, for an apparent mistake, such a hyper-technical approach is not called for. In the opinion of this court, an honest and bonafide mistake which is easily capable of being corrected should be rectified instead of the petitioner having to suffer such severe penalty of loss of a year or changing her choice of undergraduate course. The cost of a small mistake should not be so high.
20. The Supreme Court in the case of Maharashtra State Board of Secondary and Higher Secondary Education v. Paritosh Bhupesh Kumarsheth (supra) on which reliance had been placed by the learned counsel for the respondent held that in the scheme of the regulations after the publication of the results, the only right which the examinees have in relation to the matter is to ask for a verification of the results under clause (1) of regulation 104 and the scope of verification is subject to the limitations imposed in the said clause as well as in clause (3) of the same regulation. Clause (1) provided that any candidate who has appeared at the Higher Secondary Page 22 of 28 C/SCA/8168/2014 JUDGMENT Certificate examination may apply to the Divisional Secretary for verification of marks in any particular subject. The verification will be restricted to checking whether all the answers have been examined and that there has been no mistake in the totaling of marks in each question in that subject and transferring marks correctly on the first page of the answer-book and whether the supplements attached to the answer book mentioned by the candidate are intact. No evaluation of the answer-book or supplements shall be done. Clause (3) provided that no candidate shall claim, or be entitled to reevaluation of his answers or disclosure or inspection of the answer books or other documents as these are treated by the Divisional Board as most confidential. Thus, there was a specific provision for verification and an express bar against reevaluation. In the present case there is no provision either for verification or prohibiting re- evaluation/reassessment. Moreover, contrary to a case of evaluation whereby the mistake that has occurred can be detected only during the course of such re-evaluation, in the present case, during the course of physical verification, just like a candidate may notice that due to an error on the part of the respondent an answer has not been attended to or that a correct answer has been marked wrong, here what has been noticed by the petitioner is that through inadvertence, she has mentioned the wrong booklet series and hence, the OMR sheet has been assessed on a wrong basis. Rectification of the mistake does not involve any lengthy procedure except that instead of feeding the OMR sheet in the computer, it would have to be done manually as the computer would recognise the OMR sheet as an 'A' series one. Therefore, strictly speaking, the present case cannot be equated with a case of Page 23 of 28 C/SCA/8168/2014 JUDGMENT re-evaluation. Moreover, when the mistake was brought to the notice of the authorities at the earliest point of time, it could have been rectified at that stage itself so that a proper merit list could have been prepared at the relevant time itself.
21. In Pramod Kumar Srivastava v. Bihar Public Service Commission (supra), there was 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 was any mistake in the totalling of marks of each question and noting them correctly on the first cover page of the answer book. There was no provision for re-evaluation of answer books in the relevant rules. The court held that no candidate in an examination has got a right whatsoever to claim or ask for re-evaluation of marks. In the present case, since the first assessment was on a wrong basis namely, the OMR answer-sheet of the petitioner was assessed on the basis that the same related to Question Booklet Series 'A', in the opinion of this court, if the OMR sheet of the petitioner is assessed on the basis of Question Booklet Series 'B', it would be a first assessment by applying the correct answer key, and cannot be said to be re-evaluation of the answer sheet. The decisions of the Supreme Court on which reliance has been placed by the counsel for the respective parties are all decisions where the students had approached the court for re-evaluation of their answer books on different grounds. The present case is not comparable to the cases in the above decisions, inasmuch as, this is a unique situation which has arisen on account of a small mistake in mentioning the correct question booklet series, resulting in the entire assessment of the answer-sheet of the petitioner being made Page 24 of 28 C/SCA/8168/2014 JUDGMENT on a wrong basis. The Supreme Court in the case of H.P. Public Service Commission v. Mukesh Thakur (supra) has held that the law on the subject emerges to the effect that in the absence of any provision under the statute or statutory rules/regulations, the court should not generally direct re- evaluation. The said decision does not lay down any absolute proposition of law that in no case, such direction can be issued.
22. In the case of Karnataka Public Service Commission v. B.M. Vijaya Shankar (supra), the Supreme Court was dealing with a case where on the first page of the answer book supplied to the candidates appearing for Civil Services Examination, clear instruction was given that candidates before commencing their answers have to write their roll number only in the space provided therefor on the first page. At no other place, candidate has to write his name, roll number or signature. It was provided that if the candidates fail to do so or indulge in disorderly or improper conduct, they will render themselves liable for expulsion from examination and/or such other punishment as the Commission may deem to impose. Thus, the observance of the instruction as regards writing of roll number was mandatory and its disregard was punishable. The instruction was not observed by some of the candidates. The Commission did not subject these answer-sheets to evaluation. The question was whether the instruction providing for punishment was vague and the action taken by the Commission was arbitrary. The court observed that such instructions are issued to ensure fairness in the examination. In the fast deteriorating standards of honesty and morality in the society the insistence by the Commission that no attempt should be made of identification of the candidate by writing his Page 25 of 28 C/SCA/8168/2014 JUDGMENT roll number anywhere is in the larger public interest. It is well known that the first page of the answer book on which roll number is written is removed and a fictitious code number is provided to rule out any effort of any approach to the examiner. Not that a candidate who has written his roll number would have approached the examiner. He may have committed a bona fide mistake. But that is not material. What was attempted to be achieved by the instruction was to minimise any possibility or chance of any abuse. Larger public interest demands insistence of observance of instruction rather than its breach.
23. Thus, in the facts of the said case, writing of roll number on any other page amounted to malpractice as that could be a manner in which the candidate's answer-sheet could be identified in case he approached the examiner. In the present case, by not marking the correct question booklet series, the petitioner had nothing to gain and everything to lose. Marking the Question Booklet Series correctly is important because the OMR Answer Sheets are not assessed manually but through computers. However, marking the incorrect Question Booklet series cannot be equated with any kind of malpractice. It is a mistake simpliciter and nothing else. While it is true that the petitioner ought to have been more careful, a mistake of this nature ought not to be visited with such drastic consequences so as to be awarded only 14.50 marks, while in terms of the answers given by her in the OMR Answer-Sheet, she is entitled to be awarded 139.50 marks. Moreover, candidates in the case before the Supreme Court were appearing in the Public Service Commission and were not teenagers who have just passed out of school. The mistake of Page 26 of 28 C/SCA/8168/2014 JUDGMENT the nature committed by the present petitioner is apparently an inadvertent bonafide mistake and as discussed hereinabove, though such mistake may have been on account of her own fault, the petitioner should not be visited with such serious consequences.
24. In Sahiti v. Dr. N.T.R. University of Health Sciences (supra) the Supreme Court held that reevaluation of answer scripts in the absence of a 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, malafide 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 the light of the above decision, even in the absence of specific provision, re-evaluation of answer scripts is perfectly legal and permissible. In the present case, even if the assessment of the petitioner's OMR Answer Sheet were considered to be re-evaluation/reassessment, the same would fall within the categories described in the above decision, wherein intervention of the court is called for. For the reasons recorded hereinabove, the stand of the respondent University that even in case of an inadvertent, bonafide mistake of this kind which can be rectified without having to follow any lengthy procedure, the petitioner's OMR Answer Sheet cannot be assessed on the basis of the correct Question Booklet Series, is clearly arbitrary and unreasonable. The petitioner is, therefore, entitled to the relief claimed in the petition.
25. For the foregoing reasons, the petition succeeds and Page 27 of 28 C/SCA/8168/2014 JUDGMENT is accordingly allowed. Pursuant to the interim order passed by this court, the respondents upon verification had found that the petitioner had been provided with Question Booklet having series 'B' and had accordingly physically evaluated the OMR sheet and has assigned marks to her accordingly. The respondent shall declare the result of the petitioner accordingly, by placing the petitioner in the order of merit for the purpose of admission to National Law University Undergraduate Course in the discipline of law for the academic year 2014-2015. Rule is made absolute accordingly with no order as to costs.
26. At this stage, Ms. Dharmishta Raval, learned advocate for the respondent has requested that the operation of this judgment be stayed for a period of two weeks so as to enable the respondent to avail of the remedy before the higher forum. In the facts and circumstances of the case, the request is not accepted.
( Harsha Devani, J. ) hki Page 28 of 28