Gauhati High Court
Kanja Lochan Pathak vs The State Of Assam And 4 Ors on 28 September, 2015
Author: Ujjal Bhuyan
Bench: Ujjal Bhuyan
WP(C) No.4962/2013
BEFORE
HON'BLE MR. JUSTICE UJJAL BHUYAN
28.09.2015
Heard Mr. S Borthakur, learned counsel for the petitioner and Mr. B
Sinha, learned Standing Counsel, Assam Public Service Commission (APSC).
By filing this petition under Article 226 of the Constitution of India,
petitioner seeks the following reliefs: -
i) for production of his original answer scripts of Education
Paper-I and General English of Combined Competitive Examination,
2009 before the Court.
ii) to re-evaluate the answer scripts of Education Paper-I and
General English of the petitioner of the said examination and thereafter
to provide the commensurate marks due to the petitioner.
iii) to hold fresh viva-voce test for the petitioner, if after re-
evaluation petitioner secures more marks than the selected candidate
belonging to the general category shortlisted for the viva-voce test.
iv) to appoint the petitioner in a post belonging to the Assam
Civil Service or other allied service filled up through the Combined
Competitive Examination, 2009.
The aforesaid prayers have been made in the context of the following
facts.
Petitioner is a Post Graduate degree holder in English with additional
qualifications of B.Ed. and LLB. Throughout his educational career, he had secured
good marks and maintained a high academic standard. He was selected as a Post
Graduate Teacher of English by Kendriya Vidyalaya Sangathan, in which capacity he
is presently posted at Kendriya Vidyalaya, Narengi, Guwahati.
Secretary, APSC issued an advertisement, being Advertisement
No.02/2009, dated 16.02.2009 to fill up 122 vacancies in various posts under the
Assam Civil Service and allied services, the breakup of which was given in the said
advertisement. The examination was named as Combined Competitive Examination,
2009. It was stated that a preliminary examination would be conducted first for
screening candidates for the main examination. Subsequent addenda were issued
WPC No.4962/2013 Page 1 of 10
by the APSC increasing the number of vacancies in various posts to be filled up
through the Combined Competitive Examination, 2009.
Petitioner responded to the said advertisement and submitted his
application. He appeared in the preliminary examination, the result of which was
declared in January, 2012. Petitioner was declared pass in the said examination.
After clearing the preliminary examination, petitioner appeared in the Combined
Competitive Main Examination under Roll No.090414. While English and General
Studies were compulsory subjects, petitioner offered Education and Law as optional
subjects. The main examination was held from 27.05.2012. Result of the main
examination was declared on 31.12.2012. However, petitioner was not selected.
Dissatisfied with the result, petitioner submitted application under the
Right to Information Act, 2005 before the Public Information Officer, APSC seeking
various information relating to his examination, including photo copies of the
answer scripts. However, petitioner was informed by the Public Information Officer
that as the selection process of Combined Competitive Examination, 2009 had not
yet come to an end, the information sought for could not be provided to him.
Appeal preferred by the petitioner did not yield any positive result.
On 26.04.2013, finally result of the Combined Competitive Examination
was declared whereafter, petitioner submitted fresh application under the Right to
Information Act, 2005 seeking information about his examination. Vide letter dated
07.06.2013 certain information were furnished to the petitioner by the APSC.
Petitioner was informed that while there was no qualifying cut off marks for the
viva-voce test, he had, however, obtained aggregate of 673 marks in the main
examination. Breakup of marks in respect of various papers obtained by the
petitioner were furnished as under: -
i) General Studies - 166
ii) General English - 109
iii) Education P-I - 84
iv) Law P-I - 105
v) Law P-II - 109
After considerable delay, petitioner was furnished copies of his answer
scripts by the APSC on 06.08.2013. On a perusal of the answer scripts, petitioner
noticed the following anomalies in the examination/evaluation of his answer scripts.
WPC No.4962/2013 Page 2 of 10
Education Paper-I
Answer to Question No.1 having 20 marks though tick marked as correct
was left without awarding any mark. In respect of question No.9 (a), which was a
statistical question with full marks to be obtained, the answer given by the
petitioner though tick marked as correct, only 8 marks were awarded out of 10,
thereby unjustifiably deducting 2 marks.
General English
According to the petitioner, he had given correct answers to the
following questions: -
i) Question No.3 (a)
ii) Question No.3 (d)
iii) Question No.3 (h)
iv) Question No.5 (a) (iii)
v) Question No.5 (b) (ii)
vi) Question No.5 (c) (i)
vii) Question No.5 (d) (ii)
viii) Question No.5 (d) (iii)
ix) Question No.5 (d) (vii)
x) Question No.5 (e) (ii)
xi) Question No.6
But answers given by the petitioner were shown as incorrect. Thus, according to the
petitioner, it was a case of severe under-marking, as a result of which he failed to
qualify for the viva-voce test.
Though APSC declined to disclose the total marks obtained by the last
selected candidate belonging to General category, to which petitioner belongs, on
inquiry, petitioner could come to know that the last selected candidate in the
General category shortlisted for the viva-voce test had obtained 680 marks. Thus,
petitioner who had obtained 673 marks fell short by 7 marks.
Contending that had the answer scripts of the petitioner been properly
evaluated and had marks been given for all the questions correctly answered by
him, he would have certainly made the grade for the viva-voce test. Contending
WPC No.4962/2013 Page 3 of 10
that answers scripts of the petitioner were evaluated in a casual and cavalier
manner thereby causing severe prejudice to him thus depriving him from getting
entry into the civil services, present writ petition has been filed seeking the reliefs as
indicated above.
A common counter-affidavit has been filed by the respondents. Stand
taken in the counter-affidavit is that examiners and scrutinizers are appointed by the APSC from a panel of senior academicians maintained by it, who have minimum of 10 years of experience in the field. Confidentiality is maintained in the course of evaluation of answer scripts and it is not possible on the part of any examiner to identify a particular candidate. It is stated that petitioner could not clear the main examination, the result of which was declared on 31.12.2012. For the viva-voce test, candidates were shortlisted in the ratio of 1:2 to the total number of 280 vacancies. Regarding evaluation of the answers of the petitioner in General English, stand taken is that evaluation was carried out by the examiners and scrutinizers who are experts in their own field. Answers given by the petitioner were properly and fairly evaluated by the examiner. However, in case of Question No.1 of Education Paper-I, it is admitted that no marks were awarded for the answer to the said question. APSC had sought for the views of the respective examiner and scrutinizers, who admitted that they had committed a mistake, but observed that it was an act of human error. Respondents have disclosed that the marks obtained by the last selected candidate in the main examination belonging to General category was 680. Finally it is stated that Rule 70 (iv) of the Assam Public Service Commission (Procedure & Conduct of Business) Rules, 2010 does not allow re- examination of answer scripts. Therefore, prayer of the petitioner for re-evaluation of his answer scripts in respect of General English and Education Paper-I cannot be entertained.
Mr. Borthakuar, learned counsel for the petitioner submits that because of the mistake committed by the APSC, petitioner was deprived of from participating in the viva-voce test and thereby deprived from a possible appointment either in the Assam Civil Service or in the allied service. APSC cannot shirk its responsibility for not awarding marks in respect of Question No.1 of Education Paper-I which was tick marked as correct. This particular question carried 20 marks. The difference between the last selected candidate under the General category and that of the WPC No.4962/2013 Page 4 of 10 petitioner being only 7 marks, such omission, therefore, becomes very critical. Since the examiner had tick marked the answer given by the petitioner as correct, he was entitled to adequate marks for the said question. Failure to award marks had, thus, materially affected his prospects. On a query by the Court, learned counsel for the petitioner fairly submits that since final results of the Combined Competitive Examination, 2009 were declared on 26.04.2013 and the selected candidates having been appointed against notified vacancies, it may be difficult to turn the clock back now. This is more so when subsequent to the Combined Competitive Examination, 2009, a couple of such examinations have been conducted and concluded. He, however, submits that when admittedly a wrong was committed, which has fundamentally affected the life of the petitioner, the writ court is not powerless to remedy the situation and can certainly mould the relief by awarding of adequate compensation to the petitioner.
On the other hand, Mr. Sinha, learned Standing Counsel submits that evaluation of answer scripts is the job of experts. Role of the Court in matters of evaluation of answers scripts is minimal. Courts should not act as appellate bodies in such mattes and should not assume the role of super-examiners. Referring to the decision in Central Board of Secondary Education & Anr. Vs. Aditya Bandopadhyay & Ors., reported in (2011) 8 SCC 497, learned counsel submits that re-evaluation of answer books sought for by the candidate is not permissible.
Submissions made by learned counsel for the parties have received the due consideration of the Court.
Relevant facts have already been noticed above.
However to facilitate the adjudication, all the admitted facts which are considered relevant may be restated. Petitioner did not pass the main examination. He had secured a total of 673 marks. The last selected candidate under the General category, to which the petitioner belongs, had secured 680 marks and was shortlisted for the viva-voce test. Question No.1 of Education Paper-I carried 20 marks and was answered by the petitioner. Though it was tick marked as correct, no marks were awarded for the answer given to the said question. The concerned examiner has acknowledged the mistake, but has termed it to be a human error.
There is no dispute to the proposition canvassed at the Bar that any matter pertaining to conduct of examination, for any purpose, be it for recruitment WPC No.4962/2013 Page 5 of 10 to public service or in case of examinations conducted by the Board or University, scope of judicial review is very limited. Judges do not assume the role of super- examiners and Courts are also not to act as appellate bodies. Courts ordinarily do not carry out a review of the assessment or evaluation of answers or of marks awarded by the examiner. Once evaluation is done, Courts refrain from entering into the domain of re-evaluation of the answers. Evaluation of answer scripts must be left to the experts in the field. As pointed out by the Apex court in Aditya Bandopadhyay & Ors. (supra), re-evaluation of answer books is not permissible. Decision of the Court in this regard in Maharashtra State Board of Secondary and Higher Secondary Education Vs. Paritosh Bhupeshkumar Sheth, reported in (1984) 4 SCC 27 has been approved and followed in subsequent decisions. If re- evaluation has to be allowed as of right, it may lead to gross and indefinite uncertainty, besides leading to utter confusion. Barring re-evaluation of answer books and restricting remedy of the candidates only to re-totaling has been held to be valid. However, in the context of the Right to Information Act, 2005, the examinee would have the right to seek inspection of the answer books or taking certified copy thereof.
Rule 70 (iv) of the Assam Public Service Commission (Procedure & Conduct of Business) Rules, 2010 lays down that APSC shall not entertain any request for re-examination of answer scripts from candidates or from any other person.
In President, Board of Secondary Education, Orissa & Anr. Vs. D. Suvankar & Anr., reported in (2007) 1 SCC 603, the Apex Court endorsed the view taken by it in Maharashtra State Board of Secondary and Higher Secondary Education (supra) and held that it is in the public interest that the results of public examination when published should have finality attached to it. If inspection and verification in the presence of the candidates and re-evaluation are to be allowed as of right, it may lead to gross and indefinite uncertainty in the examination process. Therefore, in such matters, the Court should be extremely careful and reluctant to substitute its own views to that of the experts. However, the Apex Court sounded a note of caution that it would be wholly wrong for the Court to take a pedantic and purely idealistic approach to the problems of this nature isolated from actual realities and grass root problems. It is, in these circumstances, the Apex Court WPC No.4962/2013 Page 6 of 10 observed that award of marks by an examiner has to be fair and considering the fact that re-evaluation is not permissible, the examiner has to be not only careful and cautious but also has a duty to ensure that the answers are properly evaluated. No element of chance or luck should be introduced. Absence of a provision for re- evaluation cannot be a shield for the examiner to arbitrarily evaluate the answer scripts. That would be against the very concept for which re-evaluation is impermissible.
In Secretary W.B. Council of Higher Secondary Education Vs. Ayan Das & Ors., reported in (2007) 8 SCC 242, the view taken in D. Suvankar & Anr. (supra) has been approved.
It appears that the aforesaid position regarding impermissibility of re- evaluation has been departed upon, when it is a case of erroneous evaluation by using wrong answer key. In the case of Rajesh Kumar & Ors. Vs. State of Bihar & Ors., reported in (2013) 4 SCC 690, the Apex Court was of the view that if the model answer key which forms the basis for evaluation was erroneous/defective, the result prepared on the basis of such evaluation would also be erroneous. Application of defective answer key would vitiate the result. In such a situation, the decision of the High Court to refer the model answer key to experts for examination, who in the course of their examination found several answers to be wrong, was not interfered with. Additionally, the Supreme Court held that in a case of such nature, the High Court would be entitled to mould the relief prayed for in the writ petition.
In the light of the above discussion, this Court is not inclined to enter into the grievance raised by the petitioner relating to evaluation of his answers to the various questions in the General English paper. However, APSC being a constitutional body, entrusted with the high responsibility of undertaking recruitment to public service, it is expected that it will maintain a high standard for evaluation of the answer scripts so that purity of the selection process is not eroded and people continue to repose faith and trust in the conduct of selection by the APSC. Since re-evaluation is not permissible, APSC should consider and take appropriate steps to ensure fair and proper evaluation of the answer scripts so as to minimize all possible errors on the part of examiners and scrutinizers.
Having said so, the grievance of the petitioner in so far question No.1 of Education Paper-I is concerned, stands on an altogether different plank. This is a WPC No.4962/2013 Page 7 of 10 case where the answer given by the petitioner though marked as correct was not awarded any marks. This mistake has been admitted by the examiner as a human error. Though the answer given by the petitioner to question No.1 was apparently examined by the examiner, the examination remained incomplete because of non- awarding of marks. Therefore, there was no evaluation of the answer given by the petitioner to that question. When there was no evaluation, question of re-evaluation does not arise. Therefore in a case of this nature where no marks are awarded for an answered question, it would not be a case of re-evaluation, but a case of completing the evaluation. In an appropriate case as suggested by the Apex Court in the case of D. Suvankar & Anr. (supra), the Court may direct the examining body to complete the exercise of evaluation in respect of such answers. But coming to the facts of the present case because of the lapse of time and intervening developments whereby all the notified vacancies covered by the Combined Competitive Examination, 2009 have been filled up and subsequent combined competitive examinations have been held, it may not appear feasible and practicable to direct completion of the evaluation of the said answer of the petitioner and if he secures more mark than the last selected candidate under the General category to allow him to appear in the viva-voce test and to grant the relief as sought for. Grant of such reliefs may lead to uncertain consequences and may not also be a sound legal proposition.
However, the fact remains that a wrong was committed by an agency of the State on the petitioner and a Court of law cannot overlook such wrong committed on a citizen who is before the Court.
A candidate appearing in a public examination conducted by a constitutional body, like the APSC, is entitled to a fair assessment of his answers. This is a basic right of a candidate. A wrong or arbitrary assessment of answers may result in non-selection of a meritorious candidate affecting his future prospects. As in the present case, because of lack of assessment of the answer in respect of question No.1 of Education Paper-I possibility of the petitioner making it to the civil services or allied services was extinguished. Right to a fair assessment or at least assessment of the answers of a candidate as in the present case is therefore, traceable to Articles 14 and 21 of the Constitution of India. When an answer to a question is marked as correct, but no marks are awarded thereto, which in turn has WPC No.4962/2013 Page 8 of 10 a material bearing on the selection of the candidate, it would certainly be a case of violation of Articles 14 and 21. When there is violation of Articles 14 and 21 of the Constitution, a writ court exercising its jurisdiction under Article 226 of the Constitution can certainly award compensation as a public law remedy. This branch of civil rights jurisprudence was acknowledged by the Supreme Court of India in Rudul Sah Vs. State of Bihar & Anr., reported in (1983) 4 SCC 141 where it was explained that order for compensation in such a proceeding would be in the nature of a palliative and would not preclude the affected person from bringing in a suit to recover appropriate damages from the State and its erring officials. This aspect of the law was elaborated by the Apex Court in Nilabati Behera @ Lalita Behera Vs. State of Orissa & Ors., reported in (1993) 2 SCC 746. Approving the view taken in Rudul Sah (supra), it was held that the superior court in exercise of its power under Articles 32 and 226 of the Constitution of India would be competent to award compensation for contravention of a fundamental right. The above position has been approved and applied by the Constitutional Courts of the country in several subsequent decisions, including in the latest case of Sanjay Gupta Vs. State of UP, reported in (2015) 5 SCC 280.
In Nilabati Behera @ Lalita Behera (supra), J.S. Verma, J. (as His Lordship then was) speaking for himself and Venkatachala, J., after referring to various authorities, opined thus:-
"17. It follows that a 'claim in public law for compensation' for contravention of human rights and fundamental freedoms, the protection of which is guaranteed in the Constitution, is an acknowledged remedy for enforcement and protection of such rights, and such a claim based on strict liability made by resorting to a constitutional remedy provided for the enforcement of a fundamental right is 'distinct from, and in addition to, the remedy in private law for damages for the tort' resulting from the contravention of the fundamental right. The defence of sovereign immunity being inapplicable, and alien to the concept of guarantee of fundamental rights, there can be no question of such a defence being available in the constitutional remedy. It is this principle which justifies award of monetary compensation for contravention WPC No.4962/2013 Page 9 of 10 of fundamental rights guaranteed by the Constitution, when that is the only practicable mode of redress available for the contravention made by the State or its servants in the purported exercise of their powers, and enforcement of the furndamental right is claimed by resort to the remedy in public law under the Constitution by recourse to Article 32 and 226 of the Constitution. This is what was indicated in Rudul Sah Vs. State of Bihar and is the basis of the subsequent decisions in which compensation was awarded under Articles 31 and 226 of the Constitution, for contravention of fundamental rights."
At the time of filing of the writ petition, petitioner disclosed his age as 38 years. Admittedly, he has now crossed the age limit for appearing in any combined competitive examination. The mistake committed by the examiner had materially affected his chances for a better career prospect and future life. APSC is vicariously liable for the wrong committed by the examiner and, therefore, is liable to pay compensation to the petitioner. In a case of this nature, Court is of the view that awarding compensation of Rs.3 lakhs to be paid by the APSC to the petitioner for the wrong committed to him in the course of the Combined Competitive Examination, 2009 would be just, fair and adequate.
Accordingly, respondent Nos. 2 & 5 are directed to pay a sum of R s.3 lakhs to the petitioner within a period of 3 m onths from the date of receipt of a certified copy of this order, failing which, the said amount would carry interest at the rate of 6% per annum from the date of default.
Writ petition is disposed of to the extent indicated above.
Judge BIPLAB WPC No.4962/2013 Page 10 of 10