Orissa High Court
Siona Siddharth Moharana vs Siona Siddharth Moharana on 10 May, 2017
Author: B.K.Nayak
Bench: B.K.Nayak
HIGH COURT OF ORISSA,CUTTACK
W.P. (C) No.8004 of 2016
In the matter of an application under Articles 226 and 227 of the
Constitution of India, 1950.
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Siona Siddharth Moharana ......... Petitioner
Versus
State of Odisha and another ......... Opposite Parties
For Petitioner : M/s.Srinibas Mohanty, Saswati Routray,
Kabita Patra and Siona S. Moharana
For Opp. Parties : Mr.B.P.Tripathy, Addl. Govt. Advocate
Miss.S.Ratho, Addl. Govt. Advocate
(For O.P. No.1)
Mr.Pradipta Ku. Mohanty, Sr. Adv
M/s.J.Mohanty, D.N.Mohapatra,
P.K.Nayak, A.Das and P.K.Pasayat
(For opposite party No.2)
.........
PRESENT :
THE HON'BLE MR.JUSTICE B.K.NAYAK
AND
THE HON'BLE DR. JUSTICE D.P.CHOUDHURY
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Date of hearing:10.03.2017 Date of judgment:10.05.2017
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Dr. D.P.Choudhury, J. This writ petition has been filed questioning the
correctness of the evaluation of the answer script of the petitioner in
Odisha Judicial Service Examination, 2015.
2. The factual matrix leading to the case of the petitioner is
that she has a good academic background by passing All India
Secondary School Examination, 2005 by securing more than 70%
marks. She passed +2 Arts Examination from Revenshaw Junior College,
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Cuttack in First Division. Thereafter, she prosecuted her study in B.A.,
LLB (Hons) (Five Years Integrated Law) in Madhu Sudan Law College,
Cuttack and passed in First Class being topper in the Utkal University in
the year 2012. Not only this but also she completed her Masters in Law
(LLM) from the National Law University, Cuttack in the year 2014 with
Cumulative Grade Point Average of 7.25 out of 8.00.
3. Be it stated that in pursuance of the advertisement issued
by the opposite party no.2 for filling up the vacancies to the post of Civil
Judges in the Odisha Judicial Service Examination, 2015, the petitioner
appeared in the preliminary written examination, 2015 and she being
successful in that examination, appeared in the Main Written
Examination. In the Main Written Examination, the petitioner secured
good marks in Law of Property, Personal Law, Law of Crime, Law of
Torts and Procedural Law but secured only 47 marks in General English
as a result of which she could not qualify in the Main Written
Examination for shortage of a margin of 2.5 marks only. It is stated that
as per the Scheme of Examination, the candidate has to secure 33% in
each subject but in aggregate a candidate must secure 45% and due to
improper evaluation, the petitioner failed to secure the qualifying marks
in General English.
4. After obtaining the copy of the answer scripts of General
English paper, she came to know that she has been awarded only 9
marks out of 50 in Essay though she ought to have been awarded more
marks in that Essay. Due to improper evaluation by the examiner, she
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secured such abysmal mark. When she has got a brilliant academic
career and passed LLM, she cannot be thought of securing such
improper marks in General English and disqualify in the Main Written
Examination. So, the writ petition is filed for re-evaluation of the answer
script in General English paper by another expert afresh and consequent
benefit thereon.
5. Per contra, opposite party no.2-Odisha Public Service
Commission (hereinafter called "the O.P.S.C.") has filed counter affidavit
refuting the allegations made in the writ petition. It is the case of the
O.P.S.C. that as per Rule-20 of Odisha Superior Judicial Service and
Odisha Judicial Service Rules, 2007 (hereinafter called "the Rules,
2007"), the O.P.S.C., after consulting Hon'ble the Chief justice of this
High Court confidentially, used to appoint the examiners for law papers
prescribed for the Main Written Examination. After qualifying the Main
Written Examination as per Rule-24, the candidates are called to
interview. The petitioner having qualified in the Preliminary Written
Examination, had appeared in the Main Written Examination of Odishal
Judicial Service Examination, 2015. The answer scripts of the petitioner
were evaluated by experienced examiners duly engaged by the O.P.S.C.
in consultation with the Hon'ble Chief Justice of the Orissa High Court.
For evaluation of the papers, the Scheme of Evaluation of answer scripts
is always prepared by the Chief Examiner and Examiners at the
beginning of the evaluation and accordingly General English paper of
Odisha Judicial Service Examination, 2015 has been prepared and
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evaluation of same has been undertaken. As per the norms fixed by the
O.P.S.C., the Chief Examiner has to examine 15% of the answer scripts
evaluated by the examiners. The answer scripts of the present petitioner
being evaluated properly, the question of improper evaluation does not
arise. Since the evaluation of the General English paper has been done
correctly by the O.P.S.C., the claim of the petitioner should be
jettisoned.
SUBMISSION
6. Mr.Srinibas Mohanty, learned counsel for the petitioner
submitted that since the petitioner has got a brilliant academic career
and has passed Master Degree in Law, the haphazard evaluation of her
answer script in General English paper by awarding only 09 marks out of
50 in Essay, has thrown her career into dizziness. He further submitted
that the petitioner in other papers has been awarded with good marks
whereas she has been discriminated by awarding of only 47 out of 150
marks in General English paper. According to him, the Scheme of
Evaluation of answer scripts being not specific and not being prepared
with proper attention by the O.P.S.C., the evaluation of the General
English paper cannot be said to have been made diligently by the
examiner/chief examiner with uniformity and proper perspective.
7. Mr.Mohanty, learned counsel for the petitioner further
submitted that lack of proper evaluation of the General English paper of
the petitioner has not only failed her to qualify in the Main Written
Examination but also has put a stigma in her career as she has a dream
of becoming a Judicial Officer after being successful in the OJS
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Examination, 2015. He contended that this Court, during pendency of
this proceeding, has got the paper evaluated by another Chief Examiner,
who has awarded different mark than the mark awarded by the original
examiner. When the re-evaluation of the paper has been made by
different examiner by giving different mark, the method of evaluation of
the paper as formulated by the O.P.S.C. has become questionable. This
has become invalid due to lack of preparation of proper Scheme of
Evaluation of the answer scripts and the same should be set aside.
Consequently, by taking career of the petitioner into consideration, the
Court should award marks after going through the answer scripts of the
petitioner in General English paper and direct to qualify her in the Main
Written Examination and to appear in the interview. In this regard, he
relied upon the decision in the case of Sujasha Mukherji -V- Hon'ble
High Court of Calcutta through Registrar and others; (2015) 11
SCC 395.
8. Learned counsel for the petitioner submitted that in the
aforesaid decision, the theory of "hawk-dove" has been explained and in
order to bring about uniformity in evaluation of the papers, there is need
to evolve a procedure to ensure uniformity so that the procedure
adopted to reduce examiner subjectivity or variability, which is known as
"moderation" must be followed and the above purpose of moderation is
to achieve uniformity, which has not been followed in this case for which
there is serious injustice or illegality caused to the petitioner. So, he
submitted to direct the O.P.S.C. to declare the result of the petitioner
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showing her to have qualified in the Main Written Examination and give
her opportunity to appear in the interview.
9. Mr.P.K.Mohanty, learned Senior Advocate for the O.P.S.C.
submitted that this Court, during pendency of the writ petition, has
directed to re-evaluate examine the General English paper of the
petitioner afresh by one Chief Examiner other than the Chief Examiner
appointed by the O.P.S.C. Accordingly, the O.P.S.C. has re-evaluated
the answer script of the petitioner in General English and she has scored
much less mark on re-evaluation. When even after re-evaluation by
another Chief Examiner, the petitioner has scored less mark, the Court
should not allow her paper to be checked further. He further submitted
that the ratio decided in the case of Sujasha Mukherji (Supra) is not
applicable to the present case because of the reason that the facts of
that case are different. According to him, the Hon'ble Supreme Court in
the case of Pramod Kumar Srivastava -V- Chairman, Bihar Public
Service Commission, Patna and others; (2004) 6 SCC 714 and
Bhanu Pratap -V- State of Haryana and others; AIR 2011 SC
3272, have clearly observed that re-evaluation of the answer paper by
the Court is impermissible. There is no provision under the Rules, 2007
stipulating the manner of evaluation or re-evaluation of the answer
scripts by the O.P.S.C. in the Main Written Examination held for the
recruitment to the cadre of OJS. In absence of any Rule in the
concerned recruitment Rule, O.P.S.C. has followed its Rule and made
evaluation of paper after preparing the scheme of evaluation of answer
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scripts by competent examiners/chief examiner. So, there is no
discrimination adopted by the O.P.S.C. in the instant case to award such
mark to the petitioner in General English Paper. Career of a student is
not a criteria when there is recruitment examination usually held to
select them.
10. Mr.Mohanty, learned Senior Advocate for the O.P.S.C.
further submitted that when the Court has already passed order of re-
evaluation and the petitioner has not succeeded in securing more marks
in re-evaluation than the marks already awarded and the theory of
"moderation" as contended by the learned counsel for the petitioner is
not applicable to the facts and circumstance of this case, there is no
merit in the writ petition, which should be rejected.
11. Main Point For Consideration
(i)Whether it is permissible for re-evaluation of the answer
scripts of the petitioner in General English paper in the facts and
circumstances of this case?
12. Discussion
It is admitted fact that the petitioner was a candidate in the
OJS Examination, 2015 and she has secured 47 marks in General
English paper out of 150. Before going to the further facts of the case, it
is necessary to elucidate the law on the subject. The Hon'ble Supreme
Court in the case of Pramod Kumar Srivastava (Supra) at
paragrpah-7 have observed in the following manner:
"7.xx xx xx xx
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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 and another v.
Paritosh Bhupesh Kurmarsheth and others AIR
1984 SC 1543.
Xx xx xx xx"
It is reported in the case of Orissa Public Service
Commission and another -V- Rupashree Chowdhury and
another; (2011) 8 SCC 108 where the Hon'ble Supreme Court have
been pleased to observe that Rule-24 of the Rules, 2007 itself
emphasized minimum marks that had to be obtained by candidate
concerned and there cannot be any question of relaxation or rounding
off. Moreover, no power was provided in the Rules permitting such
rounding off or giving grace marks so as to bring a candidate up to
minimum requirement.
13. With due regard to the above decisions, it is clear that in
absence of rules, re-evaluation of the papers by the Court is not
permissible because the evaluation of the papers are made by team of
examiners. When there are large number of candidates, it is not possible
to re-evaluate each paper by Court. Moreover, Their Lordships made it
clear that Court cannot take a place of examiner to re-evaluate the
papers.
14. It is also reported in the case of Sanjay Singh and
another -V- U.P. Public Service Commission, Allahabad and
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others; (2007) 3 SCC 720 where the Hon'ble Supreme Court at
paragraph-23 of the judgment observed as follows:
"23. When a large number of candidates appear for an
examination, it is necessary to have uniformity and
consistency in valuation of the answer- scripts. Where the
number of candidates taking the examination are limited and
only one examiner (preferably the paper-setter himself)
evaluates the answer-scripts, it is to be assumed that there
will be uniformity in the valuation. But where a large number
of candidates take the examination, it will not be possible to
get all the answer-scripts evaluated by the same examiner.
It, therefore, becomes necessary to distribute the answer-
scripts among several examiners for valuation with the
paper-setter (or other senior person) acting as the Head
Examiner. When more than one examiner evaluate the
answer-scripts relating to a subject, the subjectivity of the
respective examiner will creep into the marks awarded by
him to the answer- scripts allotted to him for valuation. Each
examiner will apply his own yardstick to assess the answer-
scripts. Inevitably therefore, even when experienced
examiners receive equal batches of answer scripts, there is
difference in average marks and the range of marks
awarded, thereby affecting the merit of individual
candidates. This apart, there is 'Hawk- Dove' effect. Some
examiners are liberal in valuation and tend to award more
marks. Some examiners are strict and tend to give less
marks. Some may be moderate and balanced in awarding
marks. Even among those who are liberal or those who are
strict, there may be variance in the degree of strictness or
liberality. This means that if the same answer-script is given
to different examiners, there is all likelihood of different
marks being assigned. If a very well written answer-script
goes to a strict examiner and a mediocre answer-script goes
to a liberal examiner, the mediocre answer-script may be
awarded more marks than the excellent answer-script. In
other words, there is 'reduced valuation' by a strict examiner
and 'enhanced valuation' by a liberal examiner. This is
known as 'examiner variability' or 'Hawk-Dove effect'.
Therefore, there is a need to evolve a procedure to ensure
uniformity inter se the Examiners so that the effect of
'examiner subjectivity' or 'examiner variability' is minimised.
The procedure adopted to reduce examiner subjectivity or
variability is known as moderation. The classic method of
moderation is as follows :
(i) The paper-setter of the subject normally acts
as the Head Examiner for the subject. He is
selected from amongst senior
academicians/scholars/senior civil
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servants/Judges. Where the case of a large
number of candidates, more than one examiner
is appointed and each of them is allotted around
300 answer-scripts for valuation.
(ii) To achieve uniformity in valuation, where
more than one examiner is involved, a meeting
of the Head Examiner with all the examiners is
held soon after the examination. They discuss
thoroughly the question paper, the possible
answers and the weightage to be given to
various aspects of the answers. They also carry
out a sample valuation in the light of their
discussions. The sample valuation of scripts by
each of them is reviewed by the Head Examiner
and variations in assigning marks are further
discussed. After such discussions, a consensus is
arrived at in regard to the norms of valuation to
be adopted. On that basis, the examiners are
required to complete the valuation of answer
scripts. But this by itself, does not bring about
uniformity of assessment inter se the examiners.
In spite of the norms agreed, many examiners
tend to deviate from the expected or agreed
norms, as their caution is overtaken by their
propensity for strictness or liberality or erraticism
or carelessness during the course of valuation.
Therefore, certain further corrective steps
become necessary.
(iii) After the valuation is completed by the
examiners, the Head Examiner conducts a
random sample survey of the corrected answer
scripts to verify whether the norms evolved in
the meetings of examiner have actually been
followed by the examiners. The process of
random sampling usually consists of scrutiny of
some top level answer scripts and some answer
books selected at random from the batches of
answer scripts valued by each examiner. The top
level answer books of each examiner are
revalued by the Head Examiner who carries out
such corrections or alterations in the award of
marks as he, in his judgment, considers best, to
achieve uniformity. (For this purpose, if
necessary certain statistics like distribution of
candidates in various marks ranges, the average
percentage of marks, the highest and lowest
award of marks etc. may also be prepared in
respect of the valuation of each examiner.)
(iv) After ascertaining or assessing the standards
adopted by each examiner, the Head Examiner
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may confirm the award of marks without any
change if the examiner has followed the agreed
norms, or suggest upward or downward
moderation, the quantum of moderation varying
according to the degree of liberality or strictness
in marking. In regard to the top level answer
books revalued by the Head Examiner, his award
of marks is accepted as final. As regards the
other answer books below the top level, to
achieve maximum measure of uniformity inter se
the examiners, the awards are moderated as per
the recommendations made by the Head
Examiner.
(v) If in the opinion of the Head Examiner there
has been erratic or careless marking by any
examiner, for which it is not feasible to have any
standard moderation, the answer scripts valued
by such examiner are revalued either by the
Head Examiner or any other Examiner who is
found to have followed the agreed norms.
(vi) Where the number of candidates is very
large and the examiners are numerous, it may be
difficult for one Head Examiner to assess the
work of all the Examiners. In such a situation,
one more level of Examiners is introduced. For
every ten or twenty examiners, there will be a
Head Examiner who checks the random samples
as above. The work of the Head Examiners, in
turn, is checked by a Chief Examiner to ensure
proper results.
The above procedure of 'moderation' would bring in
considerable uniformity and consistency. It should be noted
that absolute uniformity or consistency in valuation is
impossible to achieve where there are several examiners and
the effort is only to achieve maximum uniformity."
In the said decision, it appears that evaluation of the paper
has been made according to the U.P. Public Service Commission (
Procedure and Conduct of Business) Rules 1976. In the above decision,
the procedure of "moderation" has been well explained. Their Lordships
were also of the view that the scheme of evaluation of answer scripts is
always prepared to bring uniformity of assessment. It is difficult to
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maintain the uniformity and consistency in evaluation but by this
process of "moderation", considerable uniformity is achieved.
15. The aforesaid decision has been followed in the judgment in
the case of Sujasha Mukherji (Supra). The decision in the case of
Sanjay Singh and another (Supra) seems to have been followed in
that case. The fact in the case of Sujasha Mukherji (Supra) is that the
candidate in the recruitment to the Cadre of District Judge through
direct recruitment from Bar had been moderated from 55% to 37%
during moderation. Due to such reduction of mark, she got disqualified
for further consideration in the interview. This kind of moderation has
not been appreciated by the Hon'ble Supreme Court in that case and the
Hon'ble Supreme Court allowed her to appear in the interview having
taken her moderation of marks from 55 to 40, which is minimum mark
to qualify in the written test.
16. Now adverting to the facts of the present case, it appears
that the Scheme of Evaluation in General English paper was prepared in
the following manner and the same was found by this Court to be cryptic
as per the interim order passed by this Court on 27.7.2016, which is
reproduced below:
"W.P.(C) Nos.3021, 10045, 7931, 8004 & 10441 of
2016
8. 27.7.2016Heard learned counsel for the petitioners and Mr. P.K. Mohanty, learned Senior Advocate appearing for the Odisha Public Service Commission in all the writ petitions which were heard analogously because the issues in all the writ petitions are same.
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2. It is submitted by the learned counsel for the petitioners that in the respective writ petitions, i.e., W.P. (C) Nos.3021, 10045, 7931, 8004 & 10441 of 2016 the petitioners have secured 49, 43, 38, 47 and 45 marks respectively in English without having been properly evaluated by the Examiner and rechecked by the Chief Examiner. They also submit that the marks have been awarded in English properly and specifically not in accordance with the instructions issued by the Opposite Party-OPSC. Although the petitioners are brilliant students and they have got bright career but for the callousness of the opposite parties they have not able to secure better mark so as to enable them to get call in the interview.
3. Mr. Mohanty, learned Senior Advocate for the OPSC submitted that the marks have been awarded according to the Scheme of Valuation and in support of his contention, produced the Scheme of Valuation in English and other papers. According to him, there is no fault with the opposite party-OPSC but on the advice of the Examiner and Chief Examiner marks being awarded have been taken into consideration and results have been published. It is depending on the performance of the respective candidates and in the event of failure to attend the questions properly, they have suffered. Refuting the challenges, he submitted that OPSC is ready to obey the order to be passed by the Hon'ble Court in these cases.
4. Considering the submissions of the respective counsels and on perusing the copies of the answer scripts in English submitted by the respective counsels, said to have been received from OPSC under the R.T.I. Act, considering the Scheme of Valuation in English produced by the learned counsel for the OPSC, we are of the considered view that there are force with the learned counsel for the petitioners because the Scheme of Valuation is cryptic and does not convey any sense of instruction to the Examiners to evaluate the papers. It is profitable to quote the Scheme of Valuation below:
"1. The spirit of the passage should be conveyed in English language. Literal rendition should be avoided.
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2. Credit should be reserved for answers that convey the spirit of the original passage in Chaste and error free Odia.
3. Proper co-ordination of ideas and adherence to the subject matter of the essay should be ensured. Due credit may be given to answers with flawless and fluent English. The length of the essay should not exceed the requisite limit.
4. The word limit of the précis should strictly be adhered to. The précis should be written in one paragraph. Due credit should be reserved for candidates who answer in their own language andexpress the ideas in an error free manner suggesting a title.
5. The answers should be short, to the point and attempts must be made to answer in one's own language avoiding copying from the original text."
5. On perusal of the above Scheme of Valuation issued to the Examiners, without going to the merit of the contentions raised by the respective parties, we are of the considered view that the English papers of the petitioners require examination by the Chief Examiner to be selected by the OPSC.
6. Therefore, as an interim measure, we direct the OPSC to appoint one Chief Examiner to examine the English papers of the petitioners in W.P. (C) Nos.3021, 10045, 7931, 8004 & 10441 of 2016 within a period of two weeks from today and produce the result before this Court with affidavit by the next date.
7. List this matter on 17.8.2016 under the heading "For Orders".
Urgent certified copy of this order be granted on proper application.
A free copy of this order be given to the learned counsel for the OPSC."
In view of the aforesaid order, the O.P.S.C. was directed to appoint one Chief Examiner to examine the answer scripts of the
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petitioner in General English other than the Chief Examiner appointed earlier. But, the O.P.S.C. re-examined the paper in General English of the petitioner by the Chief Examiner, who has originally appointed. So, the Court reiterating the order dated 27.7.2016 and directed on 22.9.2016 to re-evaluate the paper of the petitioner in General English by a Chief Examiner other than the Chief Examiner who re-examined the answer scripts of the petitioner and to submit the result in a sealed cover. That order was complied by the O.P.S.C. On examination of that answer scripts, it is found that after further re-evaluation, the petitioner is found to have secured 32 marks, which is much less than the original mark secured, i.e, 47.
17. In view of the facts and circumstances of this case, we are of the view that the facts of Sujasha Mukherji (Supra) are different from the facts of the present case. The question of moderation of General English paper does not arise in this case because of non- evaluation of the paper with inconsistence mark by the original Chief Examiner and no rule of scaling down or moderation theory under Recruitment Rules or Rules of OPSC either by the O.P.S.C. or by the petitioner are produced before us. Hence, the ratio decided in the case of Sanjay Singh and another (Supra) and Sujasha Mukherji (Supra), with due respect, shall not be applicable to the facts of the present case.
18. It is true that this Court has found the Scheme of evaluation of the answer scripts cryptic because the manner of giving mark has not
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been specifically mentioned therein. The answer script of the petitioner, for the satisfaction of the Court, was reviewed by a Chief Examiner other than the Chief Examiner appointed by the O.P.S.C. originally, the marks awarded has not improved, but reduced the position of the petitioner. Moreover, law is well settled in the case of Pramod Kumar Srivastava (Supra) that the Court cannot re-evaluate any answer scripts being an examiner and it can only interfere where serious injustice has been done by not following the principles enumerated. The evaluation of the answer scripts by the Chief Examiner appointed in pursuance of the order dated 27.7.2016 is unquestionable.
19. In the result, we are of the considered view that the answer scripts of the petitioner in General English paper in the facts and circumstances of the case, cannot be reopened for further re-evaluation. The point is answered accordingly.
20. CONCLUSION In terms of the above discussions, we hold that no doubt the petitioner has secured good marks in other papers but it is lamented to observe that she could not qualify in General English. At times, a good or brilliant student also fails to come up to expectation, but the Court will have to judge the case in accordance with law and not being swayed by emotions. In this case, undoubtedly the petitioner has a brilliant career, but remembering the fact that failure is the pillar of success, she should make all endeavour to succeed in her career. However, in the present case, the law being well settled that evaluation of answer scripts
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by the Court is impermissible and the prayer of the petitioner for re- evaluation of the General English paper by another examiner being allowed vide order dated 27.7.2016 and unfortunately she having not secured the qualifying marks in such re-evaluation, we have no other option than to hold that the prayer of the petitioner is devoid of merit and accordingly, we dismiss the Writ Petition. No costs.
............................................. Dr.D.P.Choudhury,J.
B.K.Nayak,J I agree ..................................
B.K.Nayak,J Orissa High Court,Cuttack Dated the Day 10th day of May,2017/B.Nayak