Calcutta High Court (Appellete Side)
Averi Mukhopadhyay vs State Of West Bengal & Ors on 21 December, 2011
Author: Soumen Sen
Bench: Tapan Kumar Dutt, Soumen Sen
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IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICTION
APPELLATE SIDE
BEFORE:
HON'BLE JUSTICE TAPAN KUMAR DUTT, J.
AND HON'BLE JUSTICE SOUMEN SEN, J.
M.A.T No.530 of 2011 With CAN No.4361 of 2011 With W.P. No.25105 (W) of 2011 AVERI MUKHOPADHYAY
-Versus-
STATE OF WEST BENGAL & ORS.
For the Petitioner : Mr. Arjun Roy Mukherjee,
Mr. Joydeep Acharya.
For the University : Mr. Santanu Patra,
Mr. R. Basak
Heard on : 24.11.2011, 08.12.2011, 14.12.2011.
Judgment on : 21.12.2011
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Soumen Sen,J.: The disappointment of a student in not obtaining the
expected marks in the B.A. Honours Examination in English language has resulted in filing of a writ petition being W.P.No.25105 (W) of 2010.
The said writ petition was dismissed on 25th February, 2011 which resulted in the present appeal being filed by the said student.
The principal grievance of the petitioner in the appeal is that of the two English papers, namely, Paper VI and Paper VII, although the Paper VII appears to have been properly re-examined but there has been no re-examination of Paper VI at all.
The petitioner was aggrieved by the results of B.A. Part-III (Honours Examination, 2010) since according to the petitioner she deserved much higher marks than what was allotted in respect of Paper VI and Paper VII.
The petitioner contends that being aggrieved by the marks allotted in respect of each of the papers, she filed review of the answer-scripts. In the review, in respect of both the papers, there has been an increase of one mark but she was not satisfied with the review of English (Honours) Paper VI.
In respect of Paper VI, it appears that initially the writ petitioner secured 49 marks and on review it was increased to 50. The learned Single Judge 3 disposed of the said writ application by directing the University to raise the mark from 49 to 51 on the basis of a report submitted by the Controller of Examination on 23rd February, 2011 in terms of an earlier order dated 4th February, 2011.
The benefit of doubt was given to the candidate for an additional one mark since there was some confusion as to whether examiner, in fact, gave two or three marks in respect of Question No.6 and since it appears that the mark allotted could be three from the manner in which the mark was put in the answer-script, such benefit was extended to the student. However, writ petitioner is not satisfied with the said increase in mark. In the appeal, the main argument was that from the answer-script, it would not appear that all the questions have been re-examined and/or reevaluated at all.
In order to ascertain the procedure that is required to be adopted in the matter of re-examination of answer-scripts, we directed the University to file an affidavit disclosing such instructions and guidelines if any in this regard. On the basis of such direction an affidavit was affirmed on 12th December, 2011 by the Assistant Controller of Examination. In the said affidavit the University submitted that there is no specific rule and/or regulation with regard to such re- examination, but the Controller of Examination has issued instructions regarding re-examination work which a re-examiner is directed to "adhere to strictly". The relevant portion is reproduced hereinbelow:
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"In order to ensure that the marks awarded on re-examination can be processed easily and to avoid legal complications the following instructions may kindly be adhered to strictly:
a) Re-examination marks and other indications including comments, if any, be put in ink different in colour from that used by the original examiner.
b) The marks awarded on re-examination be indicated as below both inside the answer-scripts and in the cage on the top-sheet of the answer-scripts. In case marks awarded to a question or the total marks is increased or decreased by '5':
(i) Increase in marks be indicated by R+5.
(ii) Decrease in marks be indicated by R-5.
(iii) No change in marks be indicated by R+0.
This exercise has to be done at all the places where the original examiner has put marks.
c) In the 6th column of the award slip meant for re-examination the change in marks should be indicated as : +5 (in case increase in marks by 5), -5 (in case decrease in marks by 5), +0 (in case there is no change in marks)."
However, in its affidavit, the University contended that the instructions are in the nature of guidelines which the re-examiners are requested to follow and are not binding upon the re-examiners. It was further contended that the re- examiners sometimes follow their own method of re-examination based on their 5 experience/expertise. In short, it was contended that irrespective of such guideline, the matter rests with the re-examiner with regard to the procedure and approach that may be adopted by such re-examiner in evaluating and/or re- examining the answer-script.
The learned Counsel appearing on behalf of the University fairly submitted that the instructions issued by the Controller of Examination have not been strictly followed by the re-examiner in respect of Paper VI. In deciding the said matter pursuant to our direction, the original answer-scripts of English Papers VI and VII were produced by Calcutta University. It appears from the answer- scripts that while the re-examiner in respect of Paper VII adhered to the instruction issued by the Controller of Examination but the re-examiner in respect of Paper VI did not follow the said instruction.
We have examined both the answer-scripts for the limited purpose of ascertaining whether instruction of the Controller has been followed and in making such enquiry, we find that in respect of Paper VII the re-examiner following the instructions issued by the Controller of Examination used a different ink, namely brown, and gave his marking against each of the answers. However, the re-examiner in Paper VI although appears to have used a different ink, namely, black in awarding mark in relation to Question No.3(b) but in respect of the other answers the aforesaid instructions were not followed. It does not appear on examining the answers that the said re-examiner has indicated the 6 'R+' or 'R-' as is required to be done in terms of the instructions issued by the Controller of Examination. Even on the first page of the answer-script, the marks were not tabulated and it only mentioned "49+R+1" (R+1 in black ink).
It is not in dispute that the re-examination is in effect the re-assessment and/or reevaluation of the answer-script.
The review and/or re-examination of answer-script would mean re- assessment of the answers. The Concise Oxford English Dictionary 10th Edition, defined review as "a formal assessment of something with the intention of instituting change if necessary". The meaning of the word "review" was considered by the Hon'ble Supreme Court in Lily Thomas v. Union of India reported in 2000 (6) SCC 224 to mean that it is the act of looking after something again with a view of correction or improvement.
Thus, in reviewing an answer-script, the reviewing examiner is required to revisit and re-examine all the questions as if he is examining such question for the first time and it is only thereafter the said examiner can assess as to whether the original examiner has awarded the proper mark in respect of each of the questions. In fact, it needs a fresh look with a fresh mind. Although, there is no guideline as such apart from the instructions as referred to above, such re- examiner has a complete discretion in the matter and manner in which he would re-examine the answer-script. Although, we are mindful of the fact that we 7 should not ordinarily re-examine the said answer-scripts as a re-examiner who is an expert in the subject but certainly the Court can examine to ascertain if such discretion has been properly exercised by following the proper procedure/guidelines and/or instructions, if any.
In the instant case, the University in no uncertain term in the instructions to the re-examiner used the expression "following instructions may kindly be adhered to strictly".
Our reading of the said instructions is that the re-examiner must indicate against each of the answers his comment which may be in the form of R+ or R- in the case of increase or decrease of marks and R+0 in case of no change. It is the admitted position in this case that in so far as Paper VI is concerned, the said instruction was not followed and excepting in relation to Question No.6 where a different ink, namely, black was used, in putting R+1. There is no means to ascertain about re-examination of the other answers since there is no mentioning of any 'R+1' or 'R-' or 'R+0' in terms of the instructions as referred to above. Moreover, from the first page of the answer-script it would not appear that such instruction was followed, in fact, the entire tabulation sheet forming the first page of the answer-script has been left blank both by the examiner and by the re- examiner except putting "49+R+1=50" presumably put by the re-examiner since it was written in black ink.
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Once a procedure is prescribed be in the form of instruction or guideline, a re-examiner is bound to follow the said procedure. Moreover, we feel that the instructions regarding re-examination work should contain detailed guidelines as far as possible.
Once the University has given a student the right to demand review of his or her answer-script, it is expected that the reviewing examiner should examine each of the answer-scripts with a fresh mind as if he is assessing the said answer-script for the first time and not mechanically. Even in absence of any instruction or guideline the procedure to be adopted should be fair and reasonable. The right of an examinee to demand review of answer-script is not in dispute. Apart from the rules of the University permitting review the Right to Information Act(22 of 2005) also gives right to an examinee to demand inspection of answer-script and the same is judicially recognized in the case of C.B.S.E Vs. Aditya Bandyopadhyay reported in 2011 (4) WBLR (SC) 329. In fact, such right of inspection to answer-script has been recognized and allowed by our High Court in the case of Pritam Rooj Vs. University of Calcutta & Ors. reported in AIR 2008 Cal 118. The judgment of the learned Single Judge was affirmed by the Hon'ble Division Bench in University of Cal & Ors. Vs. Pritam Rooj reported in AIR 2009 Cal.97. In view of such pronouncements it was now all the more necessary that the University should frame appropriate guideline in matters relating to review of answer-script. This will not only inspire the confidence of the students but the same would also increase the credibility of the 9 University and its faculty. The Calcutta University being a premier institution, it is expected, would frame appropriate guideline in addition to the instructions regarding re-examination and/or reevaluation of the answer-script.
The instructions to re-examiner, in our view, should have been more instructive. In an examination of this large scale in which the fate of several students are decided, there should be a proper procedure and guideline both at the stage of pre-publication of result and post-publication of result. At the pre- publication stage we find from the Calcutta University First Ordinance, 1979, certain duties and responsibilities have been cast upon examiners and scrutiniers. Rule 77 of the first statute deals with such duties and responsibilities of the Head Examiner. Under Rule 77(c) the duties of the Head Examiner include:
"(c)(i) to set the standard of valuation of answer-papers,
(ii) to supervise the valuation of answer-papers and ensure uniformity of the standard of marking, by issuing written instructions in detail to examiners working under him and by systematic sampling of at least 5 per cent of the answer-papers and by re-visiting the markings where necessary,
(iii) to arrange for scrutiny of answer-papers so to ensure that each question is marked and that the totals are correctly calculated and entered into the mark-sheets."10
Rule 77(d) contemplates a standard and system of marking that may be mutually decided upon at a meeting of all examiners in certain situations. However, these rules are all at the stage of pre-publication of result.
Since it concerns the fate of large number of students, we feel that the University should frame appropriate rules or regulations depending upon the objective and subjective nature of questions in relation to a particular subject so that at both stages of pre-publication and post-publication a student gets a fair deal and he is being assessed properly according to his own merit. The Hon'ble Supreme Court while dealing with public examinations explained the standard process of moderation in Sanjay Singh v. U.P. Public Service Commission reported in 2007 (3) SCC 720 in the following manner:
"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 11 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 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 minimized. The procedure adopted to reduce examiner subjectivity or variability is known as moderation. The classic method of moderation is as follows:
xxx xxx xxx
(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 12 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 eroticism 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.........
(iv) After ascertaining or assessing the standards adopted by each examiner, the Head Examiner 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 re-valued 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 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 re-valued either by the Head Examiner or 13 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.
Each examining body will have its own standards of 'moderation', drawn up with reference to its own experiences and the nature and scope of the examinations conducted by it."
What was really emphasized was the uniformity and consistency in the process of examination which necessarily mutatis mutandis would be applicable to re-examination.
In view of the fact that such instruction was not followed and it could not be said that each answer has been re-examined, we direct the Controller of 14 Examinations to appoint an examiner for the purpose of re-examination of the said English (Honours) Paper VI and we expect that such re-examiner would adhere to the instructions and follow any other guideline that may be applicable in reviewing the answer-script. We expect that each of the answers would be properly evaluated and considered taking into consideration the standard which a student is expected to maintain at the Honours level. It would be open for the re-examiner to award marks either by way of increase or decrease or without any change as the case may be but all that we expect is that there should be a proper assessment of the answer-script. We also make it clear that this judgment and order should not be treated as an expression of opinion with regard to the assessment of the answer-script on merit since it is for the re-examiner to assess the merit of such script as an expert on the subject. We also expect the University to frame appropriate rules and guidelines in regard to review by taking into consideration the observation made by us in this judgment.
The Controller of Examinations is directed to have the re-examination of Paper VI concluded within four weeks from the date of communication of this order and inform the writ petitioner accordingly.
In view thereof the order under appeal dated 25th February, 2011 is set aside in respect of Paper VI only. The appeal accordingly partly succeeds. In view thereof no further order is required to be passed in CAN No.4361 of 2011 15 and the same is disposed of accordingly. However, under the circumstances there shall be no order as to costs.
Urgent xerox certified copy of this judgment, if applied for, be given to the parties expeditiously on compliance of all necessary formalities.
(Soumen Sen, J.) I agree:
(Tapan Kumar Dutt, J.)