Orissa High Court
Bibhudananda Pratap Hati vs Secretary on 4 February, 2021
Author: P.Patnaik
Bench: P. Patnaik
HIGH COURT OF ORISSA : CUTTACK
W.P.(C) Nos.20691, 20941, 20795, 26697, 26202, 25766, 25736,
24144, 22980, 22230, 22099, 22095, 22089, 20785, 22080,
22076, 21110, 20800, 20685, 29179 and 21762 of 2020
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Applications are under Articles, 226 and 227 of the
Constitution of India.
W.P.(C) No.20691 of 2020
Bibhudananda Pratap Hati ....... Petitioner.
Versus.
Secretary, Board of Secondary
Education, Odisha and others .......... Opp.parties
Counsel for the petitioner : M/s.Karunakar Rath,
P. Panda & R. Pagal,
Advocates.
Counsel for opposite party : M/s. S.S. Rao, Advocate.
No. 1
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W.P.(C) No.20941 of 2020
Manoranjan Nayak ....... Petitioner.
Versus.
State of Odisha & another .......... Opp.parties
Counsel for the petitioner : M/s.Md. G. Madani, P.S.
Nayak, S. Hota & B.K.
Ram, Advocates.
Counsel for opposite party : M/s. S.S. Rao, Advocate.
No.1
-----------
2
W.P.(C) No.20795 of 2020
Suchismita Nayak ....... Petitioner.
Versus.
Secretary, Board of Secondary
Education, Odisha and others .......... Opp.parties
Counsel for the petitioner : M/s.Karunakar Rath,
P. Panda & R. Pagal,
Advocates.
Counsel for opposite party : M/s. S.S. Rao, Advocate.
No. 1
-----------
W.P.(C) No.26697 of 2020
Sujata Kumari Bhunya ....... Petitioner.
Versus.
Secretary, Board of Secondary
Education, Odisha and others .......... Opp.parties
Counsel for the petitioner : M/s.Kuresh Prasad Dash,
P. C. Behera & N. Samal,
Advocates.
Counsel for opposite party : M/s. S.S. Rao & B.K.
Mohanty, Advocates.
No. 1
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W.P.(C) No.26202 of 2020
Arpita Manalisha ....... Petitioner.
3
Versus.
Secretary, Board of Secondary
Education, Odisha and another .......... Opp.parties
Counsel for the petitioner : M/s.Anjan Kumar Biswal,
& R.K. Muduli,
Advocates.
Counsel for opposite party : M/s. Bibhudhendra Dash,
No. 1 P.K. Mohanty & S. Dash,
Advocates.
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W.P.(C) No.25766 of 2020
Kedar Sahukar ....... Petitioner.
Versus.
Secretary, Board of Secondary
Education, Odisha and others .......... Opp.parties
Counsel for the petitioner : M/s.Karunakar Rath,
P. Panda & R. Pagal,
Advocates.
Counsel for opposite party : M/s. S.S. Rao & B.K
Nos.1 to 3 Nayak, Advocate.
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W.P.(C) No.25736 of 2020
Alpha Mohanty ....... Petitioner.
Versus.
Secretary, Board of Secondary
Education, Odisha and others .......... Opp.parties
Counsel for the petitioner : M/s.Karunakar Rath,
P. Pal & R. Pagal,
Advocates.
4
Counsel for opposite parties: M/s. S.S. Rao & B.K.
Nayak, Advocates.
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W.P.(C) No.24144 of 2020
Jyotirmayee Sahoo ....... Petitioner.
Versus.
Secretary, Board of Secondary
Education, Odisha and another .......... Opp.parties
Counsel for the petitioner : M/s.Prajit Kumar
Pradhan & B. Panda,
Advocates.
Counsel for opposite parties: M/s. S.S. Rao, Advocate.
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W.P.(C) No.22980 of 2020
Krushnadaipayan Ray & Others ....... Petitioners.
Versus.
Secretary, Board of Secondary
Education, Odisha and others .......... Opp.parties
Counsel for the petitioners : M/s.Karunakar Rath,
& G. Moharana,
Advocates.
Counsel for opposite party : M/s. S.S. Rao, Advocate.
No. 1
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W.P.(C) No.22230 of 2020
Sumit Kumar Bishi & Others ....... Petitioners.
Versus.
5
Secretary, Board of Secondary
Education, Odisha and others .......... Opp.parties
Counsel for the petitioners : M/s.Karunakar Rath,
G. C. Moharana P. Panda
& R. Pagal,
Advocates.
Counsel for opposite party : M/s. S.S. Rao, Advocate.
No. 1
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W.P.(C) No.22099 of 2020
Chandrakanta Behera ....... Petitioner.
Versus.
Secretary, Board of Secondary
Education, Odisha and others .......... Opp.parties
Counsel for the petitioner : M/s.Karunakar Rath,
P. Panda, G.C. Moharana
& R. Pagal,
Advocates.
Counsel for opposite party : M/s. S.S. Rao, Advocate.
No. 1
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W.P.(C) No.22095 of 2020
Sarita Nanda ....... Petitioner.
Versus.
Secretary, Board of Secondary
Education, Odisha and others .......... Opp.parties
Counsel for the petitioner : M/s.Karunakar Rath,
P. Panda, G.C. Moharana
& R. Pagal,
Advocates.
6
Counsel for opposite party : M/s. S.S. Rao, Advocate.
No. 1
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W.P.(C) No.22089 of 2020
Ratikanta Panda ....... Petitioner.
Versus.
Secretary, Board of Secondary
Education, Odisha and others .......... Opp.parties
Counsel for the petitioner : M/s.Karunakar Rath,
P. Panda, G.C. Moharana
& R. Pagal,
Advocates.
Counsel for opposite party : M/s. S.S. Rao, Advocate.
No. 1
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W.P.(C) No.20785 of 2020
Reena Giri ....... Petitioner.
Versus.
Secretary, Board of Secondary
Education, Odisha and others .......... Opp.parties
Counsel for the petitioner : M/s.Karunakar Rath,
P. Panda & R. Pagal,
Advocates.
Counsel for opposite party : M/s. S.S. Rao, Advocate.
No. 1
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W.P.(C) No.22080 of 2020
Gayatri Pattnaik ....... Petitioner.
Versus.
Secretary, Board of Secondary
Education, Odisha and others .......... Opp.parties
7
Counsel for the petitioner : M/s.Karunakar Rath,
P. Panda, G.C. Moharana
& R. Pagal,
Advocates.
Counsel for opposite party : M/s. S.S. Rao, Advocate.
No. 1
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W.P.(C) No.22076 of 2020
Anita Panda ....... Petitioner.
Versus.
Secretary, Board of Secondary
Education, Odisha and others .......... Opp.parties
Counsel for the petitioner : M/s.Karunakar Rath,
& G.C. Moharana
Advocates.
Counsel for opposite party : M/s. S.S. Rao, Advocate.
No. 1
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W.P.(C) No.21110 of 2020
Topha Tripathy & Others ....... Petitioners.
Versus.
Secretary, Board of Secondary
Education, Odisha and others .......... Opp.parties
Counsel for the petitioners : M/s.Karunakar Rath,
P. Panda & R. Pagal,
Advocates.
Counsel for opposite party : M/s. S.S. Rao, Advocate.
No. 1
-----------
8
W.P.(C) No.20800 of 2020
Manasmini Das ....... Petitioner.
Versus.
Secretary, Board of Secondary
Education, Odisha and others .......... Opp.parties
Counsel for the petitioner : M/s.Karunakar Rath,
P. Panda & R. Pagal,
Advocates.
Counsel for opposite party : M/s. S.S. Rao, Advocate.
No. 1
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W.P.(C) No.20685 of 2020
Jyoti Ranjan Balabantaray ....... Petitioner.
Versus.
Secretary, Board of Secondary
Education, Odisha and others .......... Opp.parties
Counsel for the petitioner : M/s.Karunakar Rath,
P. Panda & R. Pagal,
Advocates.
Counsel for opposite party : M/s. S.S. Rao, Advocate.
No. 1
-----------
W.P.(C) No.29179 of 2020
Madhuchhanda Das ....... Petitioner.
Versus.
State of Odisha and others .......... Opp.parties
Counsel for the petitioner : M/s.Biplaba P.B. Bahali,
R.K. Routray & K.K.
Mohapatra, Advocates.
9
Counsel for opposite party : M/s. S.S. Rao, Advocate.
No.2
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W.P.(C) No.21762 of 2020
Swapna Rani Acharya ....... Petitioner.
Versus.
Secretary, Board of Secondary
Education, Odisha and another .......... Opp.parties
Counsel for the petitioner : M/s.Gopinath Sethi,
C.K. Pradhan & D.K. Rath,
Advocates.
Counsel for opposite party : M/s. S.S. Rao & B.K.
Mohanty, Advocates.
No.1
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PRESENT :
THE HON'BLE SHRI JUSTICE P. PATNAIK
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Date of Hearing : 22.01.2021 : Date of judgment: 04.02.2021
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P.PATNAIK, J. The above mentioned writ applications are founded
on similar facts and with the consent of the respective counsels, the
matters have been heard analogously and all the writ applications are
disposed of by this common order/judgment.
2. The petitioners in different writ applications being
aggrieved with the marks awarded in the Odisha Secondary Teachers
Eligibility Test, hereinafter referred to in short as 'OSTET' filed the
aforesaid writ applications contending common plea and praying
inter alia for re-evaluation of answer sheets once again and for
awarding of extra marks, solely on the ground that some of the key
answers being wrong and the petitioners are entitled to grace marks
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which would result in all the petitioners being qualified in the said
test because the petitioners have been prejudiced for being
unsuccessful due to lack of 1 to 3 marks only.
WRIT PETITIONS
3. The petitioner in W.P.(C) No.20691 of 2020 has
challenged the action of the opposite parties in not awarding proper
marks in the answer scripts for 'OSSTET' Examination, 2019 with
regard to Paper-I Set-'C'. The petitioner being Science graduate
appeared the 'OSSTET' examination on 22.01.2020. As per the result
sheet, he was awarded 74 marks and he became unsuccessful for one
mark only and the grounds stated in the writ application is that
Question No.22 in Set-'C' although correct answer on the basis of
Oxford Dictionary i.e., Leizy, there is no choice given in the Booklet.
So, the petitioner is entitled to get one grace mark. Accordingly he
would get 75 marks to be declared as pass in the aforesaid
examination. Due to inaction of the opposite parties, the petitioner
has approached this Court under Articles 226 and 227 of the
Constitution of India for redressal of his grievance.
4. The petitioner in W.P.(C) No.20941 of 2020 has
challenged the action of the opposite parties in not awarding proper
marks in Question No.37 in English Compulsory, Question No.57,
Section-III in English Optional, Question No.120 Section C/IV. The
grievance of the petitioner is that she became disqualified having
secured 89 marks due to lack of one mark only. The petitioner is
entitled to three grace mark in addition to the marks obtained as
declared by the Board. The petitioner has prayed for a direction to the
opposite parties to rectify the defect found in the question pattern
and with regard to question Nos. 37, 57 and 120 in 'OSSTET'
Examination, 2019 Paper I Set-'D' conducted by the Board of
Secondary Education and direction be made to opposite party no.2 to
declare the petitioner as a qualified awarding three marks in addition
to the marks objection i.e. 89+3= 92 marks.
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5. In W.P.(C) No.20795 of 2020, the petitioner has been
aggrieved by the award of marks in the answer scripts for 'OSSTET'
Examination, 2019 with regard to Paper-I Set-'D'. The petitioner has
been awarded 87 marks and she became unsuccessful due to want of
three marks. The petitioner has averred in the writ petition that
though she has given correct answer in Question Nos.119, 120, 123
and 13 in Odia whereas she has not been awarded marks. The
petitioner has prayed for award of marks in Question Nos.119, 120,
123 and 13 in Odia and to declare the petitioner to have qualified in
'OSSTET' Examination, 2019.
6. In W.P.(C) No.26697 of 2020 the petitioner has
challenged the action of the opposite parties in not awarding proper
marks in the 'OSSTET' Examination, 2019 with regard to Paper-I
Set-'A', the petitioner became unsuccessful due to want of two marks
only. It has been averred in the writ application that Question No.37
in Set-'A', Question No.8 in Odia, Question Nos.32 and 36 in English
Compulsory and Question No.63 in English Optional, the petitioner
has not been awarded marks. Had she been awarded marks properly
she would have qualified in the said Examination. The grievance of
the petitioner having not been redressed she has been constrained to
approach this Court under Article 226 of the constitution of India for
redressal of her grievance.
7. The petitioner in W.P.(C) No.26202 of 2020 the petitioner
having secured 73 marks became unsuccessful in the 'OSSTET'
Examination, 2019. The petitioner has averred in the writ petition
that though she has given correct answer in Question No.145 Section
IV and No.8 Section-I but she has not been awarded marks. The
petitioner has prayed for award of marks in Question Nos.8 and 145
in Set-3/C and to declare the petitioner to have qualified in 'OSSTET'
Examination, 2019.
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8. The petitioner in W.P.(C) No.25766 of 2020 has been
aggrieved by the improper award of marks in the answer scripts with
regard to Paper-I Set-'C' which has resulted in her disqualification
due to lack of three marks. The petitioner has averred in the writ
petition that the Question Nos.3, 8, 22, 64, 66, 145 and 148 and
Question No.22 in Set 'C' the petitioner has not been awarded marks
for which he is entitled to grace marks. With the aforesaid grievance
the instant writ application has been filed for redressal of grievance of
the petitioner.
9. The petitioner in W.P.(C) No.25736 of 2020 has been
aggrieved by the improper marks in the answer scripts with regard to
Paper I Set-'A'. According to the petitioner, she is entitled to grace
marks as she has given correct answer in Question Nos.13, 58, 105,
128, 135, but she has not been awarded any marks, as a result of
which she has become unsuccessful due to lack of two marks only.
Accordingly she has prayed for issuance of mandamus to opposite
party No.2 to add more marks, at least two marks to declare the
petitioner to have passed in 'OSSTET' Examination, 2019.
10. In W.P.(C) No.24144 of 2020 the petitioner has
challenged the action of the opposite parties in not evaluating the
answer papers although the petitioner has given correct answer in
Question Nos.103 and 115, but no mark has been awarded for which
he was disqualified by just one mark. Accordingly, the petitioner has
prayed for award of grace marks to declare him as qualified in
'OSSTET' Examination, 2019 I Paper-I CBZ. With the aforesaid
grievance, the petitioner has approached this Court for redressal of
his grievance.
11. The petitioners in W.P.(C) No.22980 of 2020, being
aggrieved by the award of marks in the answer scripts with regard to
Paper-I Sets 'A', 'B', 'C' & 'D' have challenged the action of the
13
opposite parties in not awarding grace marks since they were
disqualified due to lack of 1 to 3 marks only owing to wrong
evaluation of answer sheets. The grievances of the petitioners having
not been redressed, have been compelled to approach this Court
under Article 226 of the Constitution of India for redressal of their
grievances.
12. The petitioners in W.P.(C) No.22230 of 2020 have
challenged the action of the opposite parties in not awarding proper
marks in the answer scripts for 'OSSTET' Examination, 2019 with
regard to Paper-I Sets 'A', 'B', 'C'' and 'D'. The petitioners became
disqualified due to want of 1 to 3 marks only basing on wrong
evaluation of the answer sheets. The petitioners averred in the writ
application that the question in answer scripts in Paper-I Sets 'A', 'B',
'C' and 'D' being wrong they are entitled to grace marks which would
entitle them to be successful in the 'OSSTET' Examination, 2019.
Left with no alternative, the petitioners have approached this Court
under Article 226 of the Constitution of India.
13. The petitioner in W.P.(C) No.22099 of 2020 has
challenged the action of the opposite parties in not awarding proper
marks in the answer scripts with regard to Paper-I Set-'B'. According
to the petitioner, although he has given correct answer in Question
Nos.13, 18 and 60, but he has not been awarded marks as a result of
which he has become unsuccessful because of one less mark. With
the aforesaid grievances, the instant writ application has been filed.
14. The petitioner in W.P.(C) no.22095 of 2020 has
challenged the action of the opposite parties in award of improper
marks with regard to Paper-I Set-'B' in 'OSSTET' Examination, 2019.
The petitioner having secured 89 marks became unsuccessful due to
one less mark although there are wrong question and answer in the
Booklet like Question Nos.13, 18 and 27. Therefore, the petitioner is
14
entitled to grace mark. With the aforesaid grievances, the instant writ
application has been filed.
15. In W.P.(C) No.22089 of 2020 the petitioner has been
aggrieved by the award of marks in the answer scripts for 'OSSTET'
Examination, 2019 with regard to Paper-I Set-'D'. The petitioner has
been awarded 89 marks and he became unsuccessful due to one less
mark. The grievance of the petitioner is that due to wrong question
and answer in the Booklet like Question Nos.18, 119 and 120 the
petitioner is entitled to grace mark. Since the grievance of the
petitioner has not been redressed, he has filed the aforesaid writ
application.
16. The petitioner in W.P.(C) no.20785 of 2020 has
challenged the award of improper marks in 'OSTET' Examination,
2019 with regard to Paper-I Set-'C'. The petitioner has become
unsuccessful because of one mark. The petitioner has averred in the
writ application that she has given correct answers in Question
Nos.139, 140, 148, No.3 in Odia and 57 in English etc. whereas the
petitioner has not been awarded marks. The petitioner further has
averred in the writ application that Question No.22 in Set-'C' though
correct answer on the basis of Oxford Dictionary i.e., Leizy in place of
laizy there is no choice in the Booklet. So, the petitioner is entitled to
one grace mark. With the aforesaid grievance the instant writ petition
has been filed.
17. The petitioner in W.P.(C) No.22080 of 2020 has assailed
the action of the opposite parties in not awarding proper marks in
answer scripts of 'OSTET' Examination, 2019 with regard to Paper I
Set-'C'. As per the averments in the writ application, she is entitled to
grace marks because of wrong question and answer in the Booklet
like Question Nos.8, 22, 140 and 148 in Set-'C'. The petitioner was
awarded 88 marks and due to lack of 2 marks, she has become
15
unsuccessful. With the aforesaid grievances, the instant writ
application has been filed by the petitioner.
18. The petitioner in W.P.(C) No.22076 of 2020 being
aggrieved by the award of improper marks in the answer scripts in
'OSTET' Examination, 2019 with regard to Paper-I Set-'B' . The
petitioner has averred in the writ application that the petitioner has
given correct answer in Question No.13, 18, 128, 129, 134, 135, but
she has not been awarded marks and she has been given 88 marks.
Had she secured 90 marks she would have been declared pass. With
the aforesaid grievances, the instant writ application has been filed.
19. The petitioners in W.P.(C) No.21110 of 2020 have
challenged the action of the opposite parties in not awarding proper
marks in the answer scripts of 'OSSTET' Examination, 2019 with
regard to Paper-I Sets 'A', 'B', 'C' & 'D'. The petitioners have become
unsuccessful due to 1 to 3 less marks. So far as the case of the
petitioner No.1 is concerned, it has been contended that the Question
No.3 and 18 in Odia, 17 and 115 in question Booklet are wrong. So,
the petitioner is entitled to grace marks. So far as the case of the
petitioner No.2 is concerned, some answers of multiple questions like
Question Nos. 13, 18, 58 and 135 given in Question Booklet are
wrong. So the petitioner No.2 is entitled to grace mark. So far as the
case of the petitioner No.3 is concerned, he has also the similar
grievance. So far as the case of the petitioner No.4 is concerned, he
has given answer of multiple choice in some question vide Question
Nos. 8, 22, 64 and 66 in Question Booklet are wrong. So, the
petitioner no.4 is entitled to grace mark. So far as the case of the
petitioner No.5 is concerned, Question Nos.8, 22, 64 and 139 in
Question Booklet are wrong. So, the petitioner No.5 is entitled to
grace marks. So far as the case of the petitioner No.6 is concerned
Question Nos.18, 37, 57 and 119 of Question Booklet are wrong. So,
the petitioner no.6 is entitled to get grace marks. With the aforesaid
16
grievances, the petitioners have approached this Court under Article
226 of the Constitution of India.
20. The petitioner in W.P.(C) No.20800 of 2020 being
aggrieved with the award of marks in the answer scripts for 'OSSTET'
Examination, 2019 with regard to Paper-I Set-'B' has challenged the
action of the opposite parties that she became unsuccessful as she
secured 88 marks. Had she secured 90 marks, she would have
become successful. The contention of the petitioner is that in
Question No.27 she is entitled to get one grace mark in place of Set-
'B'. The petitioner has averred in the writ application that she has
given correct answer in Question Nos.18 and 27 in Odia whereas she
has not been awarded marks. With the aforesaid grievances, the
petitioner has knocked the doors of this Court under Article 226 of
the Constitution of India.
21. The petitioner in W.P.(C) No.20685 of 2020 has
challenged the action of the opposite parties in not awarding proper
marks in answer scripts for 'OSTET' Examination, 2019 with regard
to Paper-I Set-'D'. As per the contention of the petitioner, the
Question No.37 in Set-'D' although correct answer is on the basis of
the Oxford Dictionary the word Leizy in place of Laizy, there is no
choice given in the Booklet. So, the petitioner is entitled to one grace
mark, but surprisingly when the result was published he was
awarded only 74 marks instead of 75 marks which would have
resulted in passing of the aforesaid examination. Apart from this, the
petitioner has also contended that in Question Nos. 119,120, 123, 13
in Odia and 57 in English, the petitioner has not been awarded
proper marks. With the aforesaid grievances, the petitioner has
challenged the action of the opposite parties in the instant writ
application.
17
22. In W.P.(C) No.29179 of 2020, the petitioner has been
aggrieved by the improper award of marks with regard to Paper-I Set-
'B' which has resulted in her being disqualified due to lack of two
marks. According to the petitioner, the Question Nos.13, 18 and 96
in the Booklet are wrong and the petitioner is entitled to grace marks.
Accordingly, the petitioner has prayed for a direction to opposite
party no.1 to award grace marks and to declare the petitioner to have
passed in 'OSSTET' Examination, 2019.
23. The petitioner in W.P.(C) No.21762 of 2020 prayed inter
alia for a direction to opposite party No.2 for re-addition of the marks
of the petitioner in Question Nos.32,83, 104, 128 in Category-I,
Question Set I of 'OSSTET' Examination, 2019. Since the petitioner
having secured 87 marks became not qualified due to lack of three
marks. Accordingly, the petitioner has prayed for consideration of
representation and for a direction to opposite party no.2 to re-check
and re-add the marks properly in Question Nos.32, 83,104 and 128
and to supply the correct marks sheet to the petitioner within a
stipulated period of time.
24. Passing of 'OSSTET' Examination is a condition precedent
for being appointed or regularized as Secondary School Teacher.
Guidelines have been framed by the Government of Odisha.
Board of Secondary Education is only an Examining Body
to conduct the examination. Board has framed guidelines for
conducting examination in which it has been stipulated that there is
no restriction for a candidate to appear on any number of attempts
for acquiring the pass certificate. This being an eligibility test
minimum 60% for general candidate, 50% for S.C./S.T./SEBC/PH
have been prescribed. Passing of the test would not confer a right on
any person for recruitment or employment. As per the guidelines of
18
OSSTET' examination, which has been annexed as Annexture-A to
the counter affidavit filed in W.P.(C) No.20691 of 2020.
25. Section 3 of Right of Children to Free and Compulsory
Education Act, 2009 envisages that a child has a right to get free and
compulsory education. Under Section 8(g) thereof, it is the duty of the
Government to provide good quality of education confirming to
prescribed standards and norms. To achieve the objective behind the
said provisions Government have laid down guidelines to ensure
quality education by making teachers competent to impart quality
education. Therefore, a test to a teacher has been made compulsory
for appointment or regularization. In the process, Board of Secondary
Education was chosen as a professional examining body with liberty
to frame guidelines for conduct of examinations. The guidelines as
mentioned in Annexure-A to the counter affidavit stipulates for
conduct of 'OSSTET' examination.
STAND OF THE OPPOSITE PARTIES
26. Counter affidavit has been filed in the lead case, i.e.,
W.P.(C) No.20691 of 2020 by the Board of Secondary Education
repelling the contentions made in different writ applications. The
Board of Secondary Education has adopted the counter affidavit filed
in W.P.(C) No.20691 of 2020 in all the aforesaid writ applications.
In the counter affidavit, it has been inter alia submitted
that the grievances of the petitioners in different writ applications,
are not sustainable. Such a prayer cannot be entertained in law more
particularly, in absence of a provision for evaluation in the guidelines.
Preliminary objection has been made to the maintainability of the
writ application on various grounds that; firstly, this Court cannot be
called upon to assess the correctness of the answers given to
questions nor can be called upon to compare and decide which of the
answer is correct and the scope of jurisdiction cannot be extended to
such prayers of the petitioners. Secondly, the object of teachers
eligibility test is to uplift the standards of teachers and the questions
19
are required to be so set that the examinee's ability to analyse,
interpret and to apply if the subject matter is tested. The petitioners
in the writ applications have not been able to make out a case that
the answers given by the petitioners meet the required standard in
furtherance of the object and purport of the scheme. For which such
test is being conducted. Thirdly, the writ petitions are not
maintainable in law in absence of Government of Odisha in School
and Mass Education Department, who have framed guidelines and
entrusted the jobs of conducting the examination to the professional
body, Board of Secondary Education. Fourthly, no challenge should
be allowed to be made to the correctness of the award of marks, as
the Board has offered an effective alternative remedy to each of the
candidate. It has been submitted that the Board soon after the
examinations, published a scoring key, enabling the candidates to
challenge in the event of any objection to the proposed answers to the
questions. Upon publication of notification, several candidates have
raised their objections to different suggestive answers published in
the scoring key. All the challenges along with the materials supplied
by the candidates were placed before the experts of the relevant
subject and the experts have analysed the objections and gave their
views indicating if the answer as suggested in the scoring key is
correct or not. In cases where the challenge received is accepted, they
have also suggested so. Upon receiving the reports from the experts,
in all the subjects in which objections have been received, the Board
finalized the answer keys and published the results in accordance
with the same. Thus, several questions which are raised in different
writ applications have already been placed before the experts and
were tested before the results are published. Thus, the Board of
Secondary Education has taken all possible steps to ensure proper
award of marks. Fifthly, as per the scheme the answers given by the
petitioners to each of the question cannot be judged like that of the
answers given by the students appearing for regular courses. Rather,
20
the petitioners herein are required to be fit teacher and therefore, the
answers given must be perfectly correct. Otherwise the very object of
eligibility test would get frustrated. Perfect teaching ability is a boon
for healthy education system and future education system and nation
building depends on the same. Strict consideration are required to be
applied while evaluating the answer scripts of candidates, no laxity is
contemplated. Sixthly, the challenge to the evaluation of answer
papers cannot be called in question in the writ jurisdiction of this
Court even if some difference arises with regard to the answers by
two different authors, the answer that has been chosen by the
examiner which is unambiguously correct is to be accepted as the
examiner considering relevance and correct of the answer accepts
one. Seventhly, since there is no provision for re-valuation of answer
books in the relevant Rules or Regulations, the examinees have no
right to claim or demand re-valuation.
27. The petitioners have not been able to show that the
answers given by the petitioners are correct and that the key answers
are wrong. It is the position of law that the key answers should be
assumed to be correct unless it is proved to be wrong more so in the
present case, where the scoring key was further put to strict test. It is
also the law that finality has to be attached to the result of the
examination. It has further been averred in the counter affidavit that
when no mala fide is attributed to the examiners who have evaluated
the answer scripts and experts who were teachers with wide
experience teaching ability in academic matters, who have
reexamined the answers that were subjected to challenge by the some
candidates and teaching having wide experience in academic matters.
There is no further scope to invoke the jurisdiction under Article 226
of the Constitution of India.
28. The origin and reason for introducing the eligibility test for
teachers, by virtue of Article-21-A of the Constitution of India,
21
children are given a right to have free education up to elementary
stage. To achieve the constitutional mandate, an Act namely, Right to
Children Education in Elementary Schools, 2009, for short, RTE Act,
2009 has been promulgated by the Central Government which came
into force from August, 2009. Section 13(1) of the 2009 Act stipulates
teachers who teach the children should have the eligibility,
qualification and ability to teach the children. In furtherance of the
object of the Act and in accordance with the provisions in Section
23(1) of the RTE Act, 2009 National Council of Teachers Education in
short, NCTE, a statutory body laid down educational qualification
without which no candidate will be eligible to be appointed as
Teacher at elementary level. As per NCTE Notification dated
23.08.2010, one of the essential qualification for any candidate for
appointment as Teacher is that he/she should pass the Teachers
Eligibility Test which has to be conducted by the Government.
Several guidelines were also laid down for implementation of RTE Act,
2009.
29. In the backdrop of exhaustive guidelines of NCTE, the
Government of Odisha in the School & Mass Education in
furtherance of such Notification/guidelines have been conducting the
OSSTET Examination by entrusting the job to Board of Secondary
Education, which is conducting every year strictly following the
guidelines. Guidelines formulated by the Board of Secondary
Education pursuant to the guidelines of the Government of Odisha in
School & Mass Education department has been annexed as
Annexure-A to the counter affidavit.
30. In the counter affidavit, it has been submitted that in
order to maintain transparency and to provide chance to the
candidates, the proposed answer scoring key has been published in
the internet inviting objections. In the process, all the objections
received are re-examined and in cases where suggested questions are
22
found inappropriate, steps are also taken to correct the same. Copy of
the Notification calling upon objections to be raised bearing No.152
dated 07.02.2020 has been annexed as Annexure-B to the counter
affidavit.
31. In response to the notice under Annexure-B several
objections were received by the Board challenging the key answers as
published. The objections were placed before the examining body.
The objections pertain to Question Nos.3 and 16 in Set 'A', Question
No.13 in Set 'B' in Odia Paper, Question No.46 in Set 'A' in Hindi
Paper, Question No.67 in Set 'A' in Botany paper in Group III
Question No.85 in Set 'A', Question No.80 in Set 'B', Question no.75
in Set 'C', Question No.81 in Set 'D' of History and Pol.Science Paper-
I. Question Nos.110 and 128 in Set 'A', Question No.105 in Set 'B'
given in Pedogogy, Question No.88 in Set 'D', Question No.98 in Set
'B', Question No. 93 in Set 'C' which are identical in Mathematics,
Paper-I and Question Nos.32 and 70 in Set 'C', Question No.27,58 in
Set 'B', Question Nos.22 and 64 in Set 'C' and Question Nos.37 and
59 in Set 'D' in English Paper C/1. All the questions were referred to
the expert and based on their report the final key answers were
prepared and results were published based on such final answer.
Thus, the Board has absolutely maintained transparency in the
matter of conduct of examination and evaluation.
32. It is submitted in the counter affidavit that there is no
scope for reexamining the correctness of the expert. The opposite
party further submited that the answers given by the petitioners are
not correct and that answers given by the expert were taken into
account. It may be relevant to submit that expert have in some cases
accepted the challenges made by the candidates also. In the counter
affidavit, the decision of the Hon'ble Apex Court reported in AIR 1984
S.C. 1543 (State of Maharastra-vrs-State Board of Higher
Secondary Education and (2004) 6 SCC 714 (Pramod Kumar
23
Srivastav-vrs.-Chairman, Bihar Public Service Commission, Patna
and Ors and Himachal Pradesh Public Service Commission-vrs.-
Mukesh Thakur and another; (2010) 6 SCC 759 have been relied
upon.
33. Rejoinder Affidavit filed by the petitioners to the counter
affidavit filed by the opposite parties in W.P.(C) No.20685 of 2020. In
the Rejoinder Affidavit, it has been submitted that the opposite
parties have not filed the counter affidavit in proper perspective. They
have resorted to misrepresentation of facts and materials in order to
escape from the wrong committed.
i. In Set-'A' category Sumit Kumar Bisi,
Ramakrushna Pradhan, Chandrakanta Sahu, Jagan
Parida, Jyotikanti Sahu (Hindi), Amruta Khuntia,
Balaram Sahu & Ashok Bisi are in W.P.(C) No.22230 of
2020. Similarly in the same Set-'A' Manoswini Das, Raj
Nandini Mishra, Chandrabati Das, Sanjaya Kumar
Jena, Millon Krushna Dhal, Rasmita Senapati are all
in W.P.(C) No.22980 of 2020. Topha Tripathy in
W.P.(C) No.21110 of 2020 and Alpha Mohanty in
W.P.(C) No.25736 of 2020 if their questions under
challenge are consolidated in Set-'A', the question
nos.3, 8, 13, 29, 32,39,58,63,68, 70, 91 100, 103,
105, 110, 114, 115, 119, 120, 123, 131, 147 and 150
are found to be committing some mistakes to the
multiple answers and the proper verification/re-
evaluation/rechecking should have been done. But in
the counter opposite parties have never stated that
they are verified, rechecked, re-evaluated for which the
above petitioners have been declared disqualified
owing to wrong marking and due to deficient of one or
two or three marks only.
24
ii. In Set-'B' category of Booklets Manas Ranjan
Sahu, Deepak Kumar Sahu, Chinmaya Pradhan,
Padmabati Soren, Basanti Gouda, Godhuli Lagna
Nanda are the petitioners in W.P.(C) No.22230 of 2020.
Similarly Sabitri Jena, Jayadev Lohar, Mahesh Ranjan
Sahu, Snehapara Patra, Khista Majhi are all in W.P.(C)
No.22980 of 2020, Manasmini Das in W.P.(C)
No.20800 of 2020, Anita Panda in W.P.(C) No.22076 of
2020, Chandrakanta Behera in W.P.(C) No.22099 of
2020, Sarita Nanda in W.P.(C) No.22095 of 2020,
Sibani Gurung and Sumitra Nayak in W.P.(C)
No.21110 of 2020 if their questions under challenge
are consolidated in Set-'B', the question Nos.6, 8, 13,
18, 27, 28, 58, 60, 67, 72, 96, 105, 128, 129, 132, 134
and 135 are found to be committing some mistakes to
the multiple answers and the proper verification/re-
evaluation/rechecking should have been done. But in
the counter opposite party have never stated that they
are verified, rechecked, re-evaluated for which the
above petitioners have been declared disqualified
owing to wrong marking and due to deficient of one or
two or three marks only.
iii. In Set-'C' category of Booklets Sagarika
Mohanty, Krupasindhu Das, Suchitra Mohanty,
Banaja Nayak, Parijat Behera are the petitioner in
W.P.(C) No.22230 of 2020. Similarly Krushna
Daipayan Ray, Prativa Dash, Swagatika Swain,
Bholanath Bishi, Sradhanjali Pradhan and
Debadarsini Acharya are all in W.P.(C) No.22980 of
2020. Manisha Behera, Kumudini Swain in W.P.(C)
No.21110 of 2020, Bibhudhendra Pratap Hati in
W.P.(C) No.20691 of 2020, Reena Giri in W.P.(C)
25
No.20785 of 2020, Gayatri Patnaik in W.P.(C)
No.22080 of 2020 and Kedar Sahukar in W.P.(C)
No.25766 of 2020 if their questions under challenge
are consolidated in Set-'C', the question nos.3, 8, 11,
13, 22, 24, 57, 58, 64, 66, 86, 95, 139, 140, 145 and
148 are found to be committing some mistakes to the
multiple answers and the proper verification/re-
evaluation/rechecking should have been done. But in
the counter opposite parties have never stated that
they are verified, rechecked, re-evaluated for which the
above petitioners have been declared disqualified
owing to wrong marking and due to deficient of one or
two or three marks only.
iv. In Set-'D' category of Booklets Sumit Kumar
Bishi, Prakash Chandra Prusty, Amarnath Jena,
Sukanta Kumar Behera (Hindi), Sujata Naik,
Radhakanta Sahoo, Arjuna Gadangi, Tapaswini Sukla
are the petitioners in W.P.(C) No.22230 of 2020.
Similarly Baburam Hembram in W.P.(C) No.22980 of
2020. Tapas Kumar Barik in W.P.(C) No.31110 of
2020, Suchitra Nayak in W.P.(C) No.20795 of 2020
and Ratikanta Panda in W.P.(C) No.22089 of 2020 if
their questions under challenge are consolidated in
Set-'D', the question nos.13, 18, 23, 37, 57, 59, 60,
83, 95, 96, 119, 120, 123, 129 and 150 are found to
be committing some mistakes to the multiple answers
and the proper verification/re-evaluation/rechecking
should have been done. But in the counter opposite
parties have never stated that they are verified,
rechecked, re-evaluated for which the above
petitioners have been declared disqualified owing to
26
wrong marking and due to deficient of one or two or
three marks only.
34. In the rejoinder affidavit, it has been submitted that the
eligibility test is a test by which examinee is to be declared
eligible/qualified to be a teacher up to his maximum age limit of 32
years as prescribed by the Government of Odisha in School & Mass
Education Department in consonance with the RTE Act, 2009, of the
Government of India. This Court may interfere with the
action/inaction of the opposite parties who have not properly
awarded marks. Therefore, the petitioners are entitled to proper
marks.
35. It has further been submitted that the judgment cited by
the opposite parties in the counter affidavit are in different context
which are not applicable so far as the petitioners' cases are
concerned. The decision reported in 1996(II) OLR-592 (Manas Ranjan
Dash & Ors-vrs.-Council of Higher Education & Ors) has been
referred to. Similarly in the case of Pankaj Sharma-vrs.-State of
Jammu & Kashmir & Ors; reported in (2008) 4 SCC 273 have been
cited in the Rejoinder Affidavit.
ISSUES
36 From the conspectus and constellation of facts the points
for determination hinges on the following issues:
1. Whether in absence of any provision in the
guidelines, reevaluation is permissible?
2. Whether the Court of law by invoking Article 226
of the Constitution of India can re-assess the
question and re-appreciate the views of the Expert
Committee?
3. Whether direction can be made for re-assessment
of the question paper notwithstanding the fact
27
that adequate precautions have been taken for
rectification of the mistake by the expert body?
SUBMISSIONS OF LEARNED COUNSEL FOR THE PETITIONERS
37. Mr. K.K. Rath, learned counsel for the petitioner in
W.P.(C) No.20691 of 2020 and batch of cases strenuously urged that
in spite of series of defects in question and answer papers, the
petitioners have been disqualified by a whisker due to lack of 1 to 3
marks. Learned counsel for the petitioners submitted that the
petitioners have made out a case for interference and the opposite
party Board has not controverted the assertions made in the writ
application in any unequivocal manner. Therefore, the submission of
the petitioner is to be accepted on the principle of the doctrine of non-
traverse. Learned counsel for the petitioners further submitted that
the opposite parties have not replied to the pertinent question raised
in the writ application and have tried to evade the moot point.
Learned counsel for the petitioner relied on the decisions reported in
1996(II) OLR-592 and (2008) 4 SCC-273; (Pankaj Sharma vrs. State
of Jammu and Kashmir and Others).
38. Mr. Biplab P.B. Bahali, learned counsel for the petitioner
in W.P.(C) No.29179 of 2020 submitted with vehemence that due to
lack of two marks the petitioner being an examinee has been
disqualified. Learned counsel for the petitioner further submitted that
seeing the answer scripts the petitioner came to know that although
she has performed well she has secured 73 marks and has been
declared fail due to lack of very negligible two marks. After receiving
the model/correct answer scripts in respect of Set-B/Set-2, she
verified and matched with the answers in the test book, Grammar
Book and Dictionary. Finally, she prepared an answer sheet which is
very much correct so far as text book, grammar book and dictionary
are concerned. True copies of the result model/correct answer sheet
28
and correct answer on the basis of the text book and dictionary have
been annexed as Annexure-4, 5 series, 6 and 7 series to the writ
application. Learned counsel for the petitioner further submitted that
some answer of multiple choice in some questions like question
nos.13, 18, 96 and some other questions given in the question
booklet are wrong. Therefore, the petitioner is entitled to get grace
marks. Learned counsel for the petitioner further submitted that in
similar situation many examinees have allowed whereas the
petitioner has been deprived of in violation of Article 14 of the
Constitution of India. Learned counsel for the petitioner referred to
the decisions of the Hon'ble Apex Court, i.e., in the case of Kanpur
University, through Vice-Chancellor and Others vrs. Samir Gupta
and Others reported in AIR 1983 S.C. 1230 paragraphs 15 and 16 of
the said judgment are extracted herein below:-
"Para-15. The findings of the High Court raise a
question of great importance to the student
community. Normally, one would be inclined to the
view, especially if one has been a paper-setter and
an examiner, that the key answer furnished by the
paper-setter and accepted by the University as
correct, should not be allowed to be challenged.
One way of achieving it is not to publish the key
answer at all. If the University had not published
the key answer along with the result of the Test, no
controversy would have arisen in this case. But
that is not a correct way of looking at these
matters which involve the future of hundreds of
students who are aspirants for admission to
professional courses. If the key answer were kept
secret in this case, the remedy would have been
worse than the disease because, so many students
would have had to suffer the injustice in silence.
29
The publication of the key answer has unraveled
an unhappy state of affairs to which the University
and the State Government must find a solution.
Their sense of fairness in publishing the key
answer has given them an opportunity to have a
closer look at the system of examinations which
they conduct. What has failed is not the computer
but the human system."
"Para-16 Shri Kacker, who appears on
behalf of the University contended that no
challenge should be allowed to be made to the
correctness of a key answer unless, on the face of
it, it is wrong. We agree that the key answer
should be assumed to be correct unless it is
proved to be wrong and that it should not be held
to be wrong by an inferential process of reasoning
or by a process of retionalisation. It must be
clearly demonstrated to be wrong, that is to say, it
must be such as no reasonable body of men well-
versed in the particular subject should regard as
correct. The contention of the University is falsified
in this case by a large number of acknowledged
textbooks, which are commonly read by students
in U.P. Those textbooks leave no room for doubt
that the answer given by the student is correct and
the key answer is incorrect."
39. Learned counsel for the petitioners further relied upon the
decisions rendered in the cases of Bihar Staff Selection
Commission and Ors. Vrs. Arun Kumar and others (2020) 6 SCC
362. Pranab Verma vrs. Registrar General of High Court of Punjab
and Haryana 2019(17) SCALE-73, Rajesh Kumar and others vrs.
30
State of Bihar and Ors. (2013) 4 SCC 690. Richal and Ors vrs.
Rajasthan Public Service Commission and Ors reported in (2018) 8
SCC 81, Manish Ujwal and Ors. Vrs. Maharishi Dayananda
Saraswati University and Ors. reported in (2005) 13 SCC 744. Apart
from the aforesaid decision, learned counsel for the petitioner
submitted in the case of Prativa Mondal vrs. West Bengal and Ors.
(W.P. No.23006(W) of 2017, the decision rendered on 27.07.2018 by
the Hon'ble Calcutta High Court and the decision in the case of
Guruvinder Kaur and others vrs. State of Punjab and Others, in
similar issue, Teachers Eligibility Test allowed the writ application for
granting grace marks for wrong answer which squarely cover in the
present case.
40. Learned counsel for the petitioner prayed for issuance of
writ of mandamus directing the opposite parties more particularly
opposite party no.2 to award grace mark and more marks in question
nos.13, 18 and 96 and to declare the petitioner as the pass in the
OSSTET Examination, 2019.
41. Mr. Prajit Kumar Pradhan, Mr. Anjan Kumar Biswal, Mr.
Kuresh Prasad Dash and Gopinath Sethi, learned counsel for the
petitioners in W.P.(C) No.21762 of 2020 have more or less adopted
the argument advanced by Mr. K.K. Rath and Mr. Biplab P.B. Bahali,
learned counsel for the petitioners.
SUBMISSION OF LEARNED COUSNEL FOR THE SECRETARY,
BOARD OF SECONDARY EDUCATION, ODISHA
42. As against the submission of learned counsel for the
petitioner in respect of the writ petitions Mr. S.S. Rao, learned
counsel for the Board of Secondary Education, Odisha relied upon
the counter affidavit and vociferously raised preliminary objection on
the maintainability of the writ applications on the ground that the
31
State Government being author of the scheme has not been made as
a party, secondly, the guideline framed by the State Government has
not been challenged. Thirdly, no mala fide has been alleged against in
the examiners in the writ applications. Apart from raising preliminary
objection maintainability of the writ applications, learned counsel
further submitted that it is settled position of law that in absence of
any provision in the guideline, no re-valuation is permissible. In order
to advance his argument learned counsel referred to various
decisions of the Hon'ble Apex Court which will be dealt with later on.
ISSUE NO.1 AND SCOPE OF JUDICIAL REVIEW
43. In order to deal with issue no.1, it is reiterated that on
perusal of the guidelines (Annexure-A) to the counter affidavit there is
absolutely no doubt or debate that there is no provision in the
guideline for re-valuation of the answer sheets. The petitioners in
different writ applications have pointed out various wrong questions
and answer keys and the same have been dealt with in the counter
affidavit filed by the Board of Secondary Education, Odisha wherein it
has been specifically submitted that after publication of the answer
keys, objections were invited from different candidates and after
receipt of objections the same has been sent to the expert committee
and the expert committee minutely scrutinized question papers and
answer sheets and in case of any defects the same has been rectified
and proper marks have been added. Therefore, all possible steps have
been taken by the Board of Secondary Education, Odisha to rectify
the defects, if any, in the question papers or in the answer sheets and
averments of the petitioners have already been answered as disclosed
in the counter affidavit.
44. It is no more res integra that in absence of any provision
in the guideline no re-valuation is permissible. The Hon'ble Apex
Court in (2004) 6 SCC 714 (Pramod Kumar Srivastava vrs.
Chairman, Bihar Public Service Commission, Patna & Ors) has
32
been pleased to hold and the relevant portion in paragraph-8 is
extracted hereunder for ready reference:-
"Para-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. Xxxx xxx
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 in the larger interest, they must be
avoided."
45. The Hon'ble Apex Court in (2018) 2 SCC 357(Ranvijay
Singh vrs. State of Uttar Pradesh and Ors) at para-32 held that:-
"Para-32. It is rather unfortunate that despite
several decision of this Court, some of which have
been discussed above, there is interference by the
courts in the result of examinations. This places
the examination authorities in an unenviable
position where they are under scrutiny and not the
candidates. Additionally, a massive and sometimes
prolonged examination exercise concludes with an
air of uncertainty. While there is no doubt that
candidates put in a tremendous effort in preparing
for an examination, it must not be forgotten that
even the examination authorities put in equally
33
great efforts to successfully conduct an
examination. The enormity of the task might reveal
some lapse at a later stage, but the court must
consider the internal checks and balances put in
place by the examination authorities before
interfering with the efforts put in by the candidates
who have successfully participated in the
examination and the examination authorities. The
present appeals are a classic example of the
consequence of such interference where there is no
finality to the result of the examinations even after
a lapse of eight years. Apart from the examination
authorities even the candidates are left wondering
about the certainty or otherwise of the result of the
examination--whether they have passed or not;
whether their result will be approved or
disapproved by the court; whether they will get
admission in a college or university or not; and
whether they will get recruited or not. This
unsatisfactory situation does not work to
anybody's advantage and such a state of
uncertainty results in confusion being worse
confounded. The overall and larger impact of all
this is that public interest suffers."
46. This Court having gone through the various decisions
cited by learned counsel for the petitioner (supra) and learned
counsel for the Board of Secondary Education, Odisha is of the
considered view that the re-valuation in absence of any provision is
not permissible. Accordingly, the issue no.1 is answered in favour of
the opposite party-Board of Secondary Education, Odisha.
34
ISSUE Nos.2 and 3
47. Issue Nos.2 and 3 are taken up together for better
appreciation and convince.
The Hon'ble Apex Court in the case of Ashwini Kumar
Upadhyay vrs. Union of India and others; reported in (2020) 7
SCC 693 has been pleased to hold that the policy matters regarding
primary education and matters which fall within the domain of
experts. The decisions rendered on 07.12.2020 in Civil Appeal
Nos.3649-3650 of 2020 wherein case at paragraphs-11 and 13 the
Hon'ble Supreme Court Vikesh Kumar Gupta and Anr. Vrs. State
of Rajasthan and Ors. held that though re-evaluation if re-
appreciated, there scope of power in the matter of assessment of
question held that the same is not permissible. Therefore, decision of
the Hon'ble Apex Court leaves no scope for interference by invoking
extra ordinary jurisdiction under Article 226 and 227 of the
Constitution of India for re-assessment of the answer scripts in
absence of any provision in the guidelines.
48. In order to delve to the issue nos.2 and 3 as formulated
(supra) , the Court having gone through the counter affidavit is of the
considered view that adequate precautions have been taken before
valuation of the answer scripts and when the expert committee has
already taken the decision, this court will be at loath to substitute its
own view in case of the view taken by the technical expert can
evaluate the answer when there is mistake in question and answer
scripts it is for all the candidates there will be no discrimination.
Therefore, it would be profitable to refer to the decision in the case of
Maharashtra State Board of Secondary and Higher Secondary
Education and another vrs. Paritosh Bhupash Kumarsheth)
reported in AIR 1984 S.C. 1543
The paragraphs-26 and 29 are extracted hereunder for
ready reference:-
35
"Para-26. 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 recognised 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. It is
unfortunate that the High Court has not set out in
detail in either of its two judgments the elaborate
procedure laid down and followed by the Board and
the Divisional Boards relating to the conduct of the
examinations, the evaluation of the answer books
and the compilation and announcement of the
results. From the affidavit filed on behalf of the
Board in the High Court, it is seen that from the
36
initial stage of the issuance of the hall tickets to the
intending candidates right upto the announcement
of the results, a well-organised system of
verification, checks and counter-checks has been
evolved by the Board and every step has been taken
to eliminate the possibility of human error on the
part of the examiners and malpractices on the part
of examinees as well as the examiners in an
effective fashion. The examination centres of the
Board are spread all over the length and breadth of
each Division and arrangements are made for
vigilant supervision under the overall supervision of
a Deputy Chief Conductor in charge of every sub-
centre and at the conclusion of the time set for
examination in each paper including the main
answer book all the answer books and the
supplements have to be tied up by the candidate
securely and returned to the Supervisor. But before
they are returned to the Supervisor, each candidate
has to write out the title page of main answer books
in the pages provided for the said particulars, the
number of supplements attached to the main
answer book. The, Supervisor is enjoined to verify
whether the number so written tallies with the
actual number of supplements, handed over by the
candidate together with his main answer book.
After the return of all the answer books to the
Deputy Chief Conductor, a tally is taken of the
answer books including supplements used by the
candidates by the Station Supervisor who is posted
by the Board at each sub-centre. This enables the
supervisory staff at a sub-centre to verify and
37
ensure that all answer books and supplements
issued to the candidates have been turned in and
received by the supervisory staff. At this stage of
checking and double-checking, if any seat number
has been duplicated on the answer books by
mistake or by way of deliberate malpractice it can
be easily detected and corrective measures taken by
the Deputy Chief Conductor or the Chief
Conductor. The answer books are then sent by the
Deputy Chief Conductor to the Chief Conductor in
charge of the main centre. He sorts out the answer
books according to the instructions issued by the
Board and sends them to the examiners whose
names had been furnished in advance except in the
case of the science subjects, namely, "mathematics
and statistics, physics, chemistry and biology". The
answer books in the science subjects are forwarded
by the Chief Conductor under proper guard to
camps in Pune already notified to the Chief
Conductors. The further procedure followed in
relation to the valuation of the answer books has
been explained in paragraphs 22 to 26 of the
counter affidavit dated 10th July 1980 filed in the
High Court by the Joint Secretary to the Pune
Divisional Board of Secondary Education. We do
not consider it necessary to burden this judgment
with a recapitulation of all the details furnished in
those paragraphs, and it would suffice to state that
the procedure evolved by the Board for ensuring
fairness and accuracy in evaluation of the answer
books has made the system as fool proof as can be
possible and it meets with our entire satisfaction
38
and approval. Viewed against this background, we
do not find it possible to agree with the views
expressed by the High Court that the denial of the
right to demand a revaluation constitutes a denial
of fair play and is unreasonable. The Board is a
very responsible body. The candidates have taken
the examination with full awareness of the
provisions contained in the Regulations and in the
declaration made in the form of application for
admission to the examination they have solemnly
stated that they fully agree to abide by the
regulations issued by the Board. In the
circumstances, when we find that all safeguards
against errors and malpractices have been provided
for, there cannot be said to be any denial of fair
play to the examinees by reason of the prohibition
against asking for revaluation.
Para-29. 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. As has been
repeatedly pointed out by this court, 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. 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
39
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 were 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. It is unfortunate that this
principle has not been adequately kept in mind by
the High Court while deciding the instant case."
49. In the case of Mukesh Thakur and another vrs.
Himachal Pradesh Public Service Commission reported in (2010) 6
SCC 759.
The Paragraphs 20 and 26 are extracted hereunder for
ready reference:-
"Para-20. In view of the above, it was not
permissible for the High Court to examine the
question paper and answer sheets itself,
particularly, when the Commission had assessed
the inter se merit of the candidates. If there was a
discrepancy in framing the question or evaluation
of the answer, it could be for all the candidates
appearing for the examination and not for
Respondent no.1 only. It is a matter of chance that
the High Court was examining the answer sheets
relating to Law. Had it been other subjects like
Physics, Chemistry and Mathematics, we are
unable to understand as to whether such a course
could have been adopted by the High Court.
Therefore, we are of the considered opinion that
40
such a course was not permissible to the High
Court.
Para-26. Thus, the law on the subject emerges to
the effect that in absence of any provision under
the statute or statutory rules/regulations, the
Court should not generally direct revaluation."
50. In a similar situation when the key answers published and
grievances were considered, the Hon'ble Supreme Court in the case of
Richal and Ors vrs. Rajasthan Public Service Commission and
Ors reported in (2018) 8 SCC 81 not only appreciated the attempt to
achieve fairness and transparency did not interfere with the case. The
relevant portion in paragraph-19 is extracted hereunder for ready
reference:-
"19. The key answers prepared by the paper setter
or the examining body is presumed to have been
prepared after due deliberations. To err is human.
There are various factors which may lead to framing
of the incorrect key answers. The publication of key
answers is a step to achieve transparency and to
give an opportunity to candidates to assess the
correctness of their answers. An opportunity to file
objections against the key answers uploaded by
examining body is a step to achieve fairness and
perfection in the process. xxxx"
51. Therefore, an effective and alternative remedy has been
provided vide Annexure-B to the counter affidavit and those
petitioners who have not availed the same cannot raise any objection
now and cannot be allowed to raise objection in the writ application
and in case of those who have raised objection, the same has been
considered by the expert committee. So, the petitioners those who
have lost the opportunity of raising the objection at the opportune
41
time cannot invoke the jurisdiction under Articles 226 and 227 of the
Constitution of India to ask for re-evaluation of the answer paper and
for award of grace marks in absence of any provisions in the
guidelines.
Accordingly, issue nos.2 and 3 are answered in favour of
Board of Secondary Education, Odisha. Moreover, from the perusal of
the pleading made in different writ applications, no mala fide has
been alleged or corrupt practice has been attributed to the examiners
but only bald pleadings have been made for wrong answers and on
that basis prayer has been made for re-examination and re-
evaluation which is not panacea for the malady of incorrect key
answers.
52. In pursuance to queries and direction made by this
Court, an affidavit has been filed by the Secretary, Board of
Secondary Education, Odisha wherein it has been categorically stated
that in the aforesaid writ petitions, there are about of 69 candidates.
All the petitioners except Sri Jayadev Lohar, the petitioner in W.P.(C)
No.22980 of 2020, have filed their challenges in response to
Notification No.153 dated 07.02.2020, calling upon all the candidates
to raise any challenge between dated 08.02.2020 to 14.02.2020 in
case, they feel any ambiguity in any key answers within the
stipulated time and before the final scoring key was published.
Objections given by all the candidates, who have appeared in the
OSSTET, 2019, were 363 in numbers. All the objections so received,
the same were placed before the concerned subject experts when on
re-examination of the challenges, eight of the challenges were
accepted and rest 355 were not accepted.
53. Further, it has been submitted that challenges were
placed before the expert and after the experts have examined, the
scoring keys, final scoring key was uploaded in the website of the
42
Board for information of the candidates vide Notification No.613
dated 01.08.2020.
54. It would be relevant to refer to decision reported in (2018)
2 SCC 357; (Ranvijay Singh and Others vrs. State of Uttar
Pradesh and Others) where at paragraph-31, the Hon'ble Apex Court
has been pleased to inter alia hold that sympathy has no role to
invoke extra-ordinary jurisdiction under Articles 226 and 227 of the
Constitution of India. Another point which cannot be lost sight that
the Hon'ble Apex Court in the case of Bihar Staff Selection
Commission and Ors. vrs. Arun Kumar and others (2020) 6 SCC
362 at paragraph-26 has been pleased to inter alia hold that re-
evaluation undertaken by the High Court has not solved but
contributed to chaos. Therefore, in absence of any guideline, re-
evaluation would lead to utter confusion worst confounded.
55. After giving anxious consideration to the rivalized
submissions of the respective parties and on perusal of the decisions
cited at the Bar, this Court is not persuaded to accede to the prayer
of the petitioners. Accordingly, the writ petitions sans merit are
dismissed.
As restrictions are continuing due to COVID-19 pandemic,
learned counsel for the parties may utilize the soft copy of this order
available in the High Court's official website or print out thereof at
par with certified copies in the manner prescribed, vide Court's Notice
No. 4587 dated 25.03.2020.
......................
P.Patnaik,J.
Orissa High Court, Cuttack The 4th February, 2021/R&JB