Calcutta High Court (Appellete Side)
Central School Service Commission & Ors vs Tanuj Paul on 18 May, 2017
Author: Shivakant Prasad
Bench: Rakesh Tiwari, Shivakant Prasad
IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATRE JURISDICTION
APPELLATE SIDE
Central School Service Commission & Ors.
Versus
Tanuj Paul
FMA 407 of 2015
With
CAN 10950 of 2013
With
FMA 2275 of 2014
With
FMA 2276 of 2014
With
FMA 2265 of 2014
With
FMA 520 of 2016
With
FMA 177 of 2015
With
FMA 2267 of 2014
With
FMA 2344 of 2014
With
FMA 4439 of 2016
With
FMA 2474 of 2014
With
FMA 519 of 2016
With
FMA 2266 of 2014
With
FMA 2151 of 2014
With
FMA 2345 of 2014
With
FMA 2347 of 2014
With
FMA 3929 of 2016
With
FMA 3930 of 2016
Coram : Rakesh Tiwari, J.
Shivakant Prasad, J.
For the Appellants : Mr. Abhijit Gangopadhyay, Adv.
Ms. Supriya Dubey, Adv.
Ms. Shilpi Ganguly, Adv.
For the Respondent No. 1 : Mr. Amal Baran Chatterjee, Sr.Adv.
Mr. Sunit Kumar Roy, Adv.
Heard on : 28.04.2017 C.A.V. on : 28.04.2017 Judgment on : 18.05.2017 SHIVAKANT PRASAD, J.
By a common judgment dated 10.10.2012 several writ applications were allowed by the writ court directing the West Bengal Central School Service Commission for re-examination or re-evaluation of the answer scripts of the appellants/writ petitioners challenging the impugned judgment several appeals have been filed.
In respect of one writ application being W.P.18407(W) of 2012 another Hon'ble Judge sitting singly following the aforesaid judgment passed identical judgment against which another appeal being FMA 407 of 2015 has been filed. All the above appeals have been taken up together for hearing as they can be awarded by a common judgment because the appeals emanates from the common judgment passed in the aforesaid sets of writ petitions.
Mr. Abhijit Gangopadhyay, learned advocate for the appellants submitted that in absence of any Rule for re- examination/re-evaluation of answer scripts order for re- examination/re-evaluation cannot be passed.
The Writ Court by its common judgment and order dated 10.10.2012 and the another Writ Court by its judgment dated 18.12.2012 following the judgment dated 10.10.2012 has directed the West Bengal Central School Service Commission to re-examine or re-evaluate the answer scripts by examiners other than the examiners who had examined the answer scripts relying upon Right to Information Act, 2005 in effect laid down new Rules of the Selection test as the Rules following which the said Selection Test was held did not contain any such Rule for re-examination or re-evaluation.
It is submitted on behalf of the appellants that Right to Information Act, 2005 is inapplicable in respect of re- examination of answer scripts and no order for re-examination of answer scripts in a competitive examination for selecting Teachers of Schools can be passed by the Court of law in absence of any such rules.
Per contra, learned counsel for the respondent/writ petitioners has submitted that they have given correct answers to the questions but the answers were not properly examined by the examiners awarding full marks in respect of those answers.
It is further argued on behalf of the appellants attacking the contention of the learned counsel for the respondents/writ petitioners that selection test was not by way of objective type test rather it was subjective type and the candidates were asked to write answers against questions framed by the experts. There were thirty questions each of two marks. The full marks was sixty. Different candidates appeared in different subjects according to their qualification for being teachers in respect of those subjects. Some candidates appeared for the post of Assistant Teacher for the subject mathematics, some candidates appeared for the post of teachers in the subject Bengali, some appeared for the subject History etc. In the said selection test nearly 3,00,000 (Three lacs) candidates participated for nearly 3,000 (Three thousand) vacancies for the post of Assistant Teachers.
There was no allegation in any of the writ applications that the questions were incorrect or incorrectly framed for which answers could not be given or answers were bound to be incorrect. There was also no allegation against the examiners being biased. There was no allegation of any corrupt practice in the said examination. There was no allegation of practice of any fraud of any nature whatsoever.
It is submitted that in catena of decisions the Hon'ble Supreme Court has time and again pronounced that in an examination, in absence of rules of re-examination /re- evaluation of answer scripts, there cannot be any re- examination-re-evaluation.
It is submitted that for the reasons as aforesaid the appeals are to be allowed and the impugned order should be set aside and quashed.
Admittedly, the respondent no. 1/writ petitioner participated in 11th Regional Level Selection Test (RLST), 2010, for being appointed to the post of Assistant Teacher in Mathematics in Hons./PG category conducted by West Bengal Regional School Service Commission, Northern Region on 10.10.2010. He became successful in the Written Test and appeared in the Personality Test scheduled to be held on 21.2.2011 but petitioner could not secure place in the list of successful candidates.
So, he made an application on 26.12.2011 under Right to Information Act seeking the total marks obtained by the petitioner and lowest marks obtained by the candidate in the same Category in 11th R.L.S.T. 2010 who was recommended for appointment to the post of Assistant Teacher in Mathematics under Hons./P.G. category. The Secretary, West Bengal Regional School Service Commission, Northern Region, Malda, Vide letter dated 24/25.1.2012 informed the writ petitioner that the last candidate recommended for the said appointment had obtained 35.50 in aggregate whereas writ petitioner in aggregate obtained 33.50. Thereafter the writ petitioner again made application dated 3.2.2012 under the Right to Information Act was filed seeking inspection of answer script of Paper-I, Mathematics, and in response thereto he was permitted to have inspection of the answer script it was found that in spite of giving correct answer to Question No.29 he was allotted zero marks. Thereafter, the writ petitioner made applications dated 24.3.2012 and 3.4.2012 to the concerned authority of the West Bengal Central School Service Commission for re-evaluation of his answer scripts specially the answer offered by him to Question No. 29. In letter dated 24.3.2012 the writ petitioner also referred to the answer given by another similarly circumstanced candidate namely Md. Masidur Rahman to the same Question No. 29 wherefrom it transpired that by offering same answer to Question No. 29 said Masidur Rahman was allotted 2 marks out of 2, Whereas the writ petitioner was allotted "0" though both of them answered to Question No. 29 following the same method and the answer of both the candidates were same.
In addition thereto on approach being made to Sri Sanatan Das. Assistant Professor in Mathematics, Department of Mathematics, University of Gourbanga, by the petitioner to find out whether the writ petitioner answered correctly to Question No.29 it was opined by Sri Sanatan Das by letter dated 4.7.2012 that the writ petitioner offered correct answer to the said Question No. 29 but the authority of the West Bengal Central School Service Commission by letters dated 22.5.2012 and 23.5.2012, refused to re-evaluate the answer script of Mathematics of the petitioner.
Finding no other alternative writ petitioner preferred writ petition being W.P. No. 18407 (W) of 2012 (Tanuj Pal -Vs- State of West Bengal & Ors.), inter alia, challenging refusal of the concerned authority of the West Bengal School Service Commission to re-evaluate the answer script of the writ petitioner/respondent No.1 which was disposed of by the Learned Single Judge by impugned order dated18.12.2012 thereby directing the appellant authority to appoint an examiner, other than the examiner who examined the answer script of the petitioner, for the purpose of re-examination and/or re-evaluation of the answer script of the Mathematics subject and to complete the entire exercise within a period of six weeks from the date of the communication of the order and also to communicate to the writ petitioner the marks so allotted to him and his position within a week thereafter by further direction to the concerned authority to keep one post vacant in order to accommodate the writ petitioner in the event he comes within the zone of consideration.
In support of the case of the writ petitioners/ respondents, Mr. Amal Baran Chatterjee learned Advocate relied on the principles laid down by the Hon'ble Apex Court in the following reported decisions:
1. AIR 1983 Supreme Court, 1230 Kanpur University &.
Others --V- State of UP. Paragraph 16 81, 17.
2. AIR 2009 Supreme Court, 879Sahiti V. Chancellor, Dr. N.T.R. University of Health Sciences Paragraph 9.
3. AIR 2009 Calcutta, 97 The University of Calcutta Ors. -- V-- Pritam Rooj Paragraph 50, 52, 53 85 56.
4. AIR 2015 Gauhati, 22 Dr. Mrinmoy Bhuyan --V- The State of Assam, Paragraph 39 85 40.
5. (2011) 8 Supreme Court Cases, 781 ICAI --V- Shaunak I- I. Satya Paragraph 38 .
Mr. Chatterjee fortified his argument that taking into consideration the facts of the case, the writ petitioner is entitled, to have his answer script of Mathematics re-evaluated and/ or re-assessed by another examiner of Mathematics in order to find out the marks the writ petitioner was entitled to be awarded in Paper-I, Mathematics, in 11th Regional Level Selection Test, 2010. If it is found that the writ petitioner is entitled to be awarded 2 marks on re- evaluation of his answer to Question No. 29 in that event aggregate marks of the writ petitioner would be 35.50 instead of 33.50 which would bring the petitioner within the zone of consideration for being appointed to the post of Assistant Teacher in Mathematics under Hons./P.G. Category otherwise he will be deprived of 2 marks against Question No. 29 which will seal the fate of the writ petitioner in his pursuit to have his name recommended for being appointed to the post of Assistant Teacher in Mathematics.
Mr. Chatterjee placed reliance to a decision in case of Kanpur University and Ors. (supra) wherein the Hon'ble Apex Court has held "if a paper-setter commits an error while indicating the correct answer to a question set by him, the students who answer that question correctly cannot be failed for the reason that though their answer is correct, it does not accord with the answer supplied by the paper-setter to the university as the correct answer." While holding so, it has been observed in Paragraph 16 thus:
"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 rationalisation. 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 would regard as correct."
It is further observed in Paragraph 17 that, "Students who have passed their Intermediate Board Examination are eligible to appear for the entrance Test for admission to the Medical Colleges in U.P. Certain books are prescribed for the Intermediate Board Examination and such knowledge of the subjects as the students have is derived from what is contained in those text-books. Those text-books support the case of the students fully. If this were a case of doubt, we would have unquestionably preferred the key answer. But if the matter is beyond the realm of doubt, it would be unfair to penalise the students for not giving an answer which accords with the key answer, that is to say, with an answer which is demonstrated to be wrong."
The learned counsel for the writ petitioners/respondents submits that in case of doubt unquestionably the key answer has to be preferred and the candidate cannot be penalised for not giving an answer which accords with a key answer. In our considered opinion the decision is distinguishable from the facts of the instant case as the answer to Question 29 of subject Mathematics has not been given as per the key note and the step is not correctly shown though, the answer has been drawn up mathematically to be correct.
Reliance is also placed in case of Sahiti & Ors. (supra) at paragraph 9 of the decision wherein it is observed that a cogent and meaningful reading of the provisions of Section 12 (2) of N.T.R University of Health Sciences Act makes it evident that the Vice-Chancellor has the power to take appropriate action relating to the affairs of the University which includes conduct of examination also. The Vice-Chancellor is the conscious keeper of the University. He is the principal executive and academic officer of the University. He is entrusted with the responsibility of overall administration of academic as well as non-academic affairs. It was observed in Paragraph 9 of the cited judgment thus:
"The plea that there is absence of specific provision enabling the Vice-Chancellor to order re-evaluation of the answer scripts and, therefore, the judgment impugned should not be interfered with, cannot be accepted. Re- evaluation of answer scripts in the absence of specific provision is perfectly legal and permissible. In such cases, what the Court should consider is whether the decision of the educational authority is arbitrary, unreasonable, mala fide and whether the decision contravenes any statutory or binding rule or ordinance and in doing so, the Court should show due regard to the opinion expressed by the authority.
In this regard learned counsel for the respondents submitted that even if there is no provision for re-evaluation of the answer scripts, the decision can be given for re-verification of the answer scripts in line with the observation as made aforesaid by the Hon'ble Apex Court. We are not unmindful of the fact that it was the decision of the Vice-Chancellor of the University who ordered for re-evaluation of the answer scripts which he could do by virtue of provisions of Section 12 (2) and Section 12 (3) of the said Act. The ratio of decision in our considered opinion is not applicable in the facts of the instant case.
In case of University of Calcutta and Ors. vs. Pritam Rooj the writ appeal was preferred by the University of Calcutta and its officers against the judgment and the order of the learned Single Judge of this Court preferred by Pritam Rooj who had appeared in B.Sc. Part-II (three years course) Examination 2007 and was successful in clearing his examination, but he was dissatisfied with the marks awarded to him in respect of Papers V and VI. He applied for the review of those papers and his marks in Paper V were increased by four marks on revaluation while there was no change in Paper VI. He sought for information under Right to Information Act, 2005 seeking inspection of his answer scripts which was turned down by the Registrar of the University and then he filed writ petition seeking production of the answer scripts for revaluation and re-examination by an expert examiner and also for withdrawal/recalling of the order of rejection. The Division Bench of this Hon'ble Court in appeal by setting aside the order impugned passed by writ court directed upon CBSE to grant inspection of the answer scripts to the information seekers/examinees concerned. However, the prayer for re- evaluation of the scripts was refused with further observation that it would be open to the examinees to seek relief in that behalf in appropriate proceedings, if initiated, after they have access to the assessed/examined answer scripts.
Learned counsel relied on the said direction in the reported decision and submitted, since the writ petitioners/respondents have now access to their answer scripts, re-evaluation can be ordered. The decision in our opinion is not apposite to the facts of the instant case.
Learned counsel for the writ petitioners/respondents relied on the observation made in Paragraphs 39 and 40 of Dr. Mrinmoy Bhuyan case which reads thus:
"39. In three Judges Bench decision, this very issue came up for consideration before the Supreme Court in a case reported in (2009) 1 SCC 599 : (AIR 2009 SC 879, Para 9) Sahiti and others vs. Chancellor, Dr. NTR University of Health Science and others. Justice Panchal, speaking for the bench expressly negatived this plea and held in para 32 as under: "32. The plea that there is absence of specific provision enabling the Vice-Chancellor to order re-evaluation of the answer scripts and, therefore, the judgment impugned should not be interfered with, cannot be accepted. Re- evaluation of answer scripts in the absence of specific provision is perfectly legal and permissible. In such cases, what the court should consider is whether the decision of the educational authority is arbitrary, unreasonable, mala fide and whether the decision contravenes any statutory or binding rule or ordinance and in doing so, the court should show due regard to the opinion expressed by the authority."
40. In the light of aforesaid authoritative pronouncement of the Supreme Court on the issue in question, we have no hesitation in holding that even though there was no specific rule/regulation made in that behalf, yet in our considered opinion, the decision of the State to do revaluation was just, legal and fair and could not be assailed successfully only on the ground of absence of power with the State. It was much more so when the action was not assailed by the writ petitioners on the ground of arbitrariness, or unreasonableness, or on the plea of mala fides or/and any extraneous consideration." In the cited case candidate appearing in the entrance examination for MDS course had a legitimate belief that since whitener was not mentioned along with specified prohibited category of articles/objects in Clauses 6, 7 and 8 from being used, its use was permitted. This case in our view is distinguishable from the facts of the case as in the cited case, the decision taken by the State for revaluation was held just, legal and fair even in absence of power with the State.
Yet reliance is placed on the authority of the Hon'ble Apex court in Institute of Chartered Accountants of India (supra) by learned counsel for the respondents/petitioners on the observation as made in Paragraph 38 which reads thus:
"38. Examining bodies like ICAI should change their old mindsets and tune them to the new regime of disclosure of maximum information. Public authorities should realise that in an era of transparency, previous practices of unwarranted secrecy have no longer a place. Accountability and prevention of corruption is possible only through transparency. Attaining transparency no doubt would involve additional work with reference to maintaining records and furnishing information. Parliament has enacted the RTI Act providing access to information, after great debate and deliberations by the civil society and Parliament. In its wisdom, Parliament has chosen to exempt only certain categories of information from disclosure and certain organisations from the applicability of the Act. As the examining bodies have not been exempted, and as the examination processes of the examining bodies have not been exempted, the examining bodies will have to gear themselves to comply with the provisions of the RTI Act. Additional workload is not a defence. If there are practical insurmountable difficulties, it is open to the examining bodies to bring them to the notice of the Government for consideration so that any changes to the Act can be deliberated upon. Be that as it may."
Learned counsel for the appellants submitted that in absence of any rule for re-examination/re-evaluation of answer scripts, order for re-examination or re-evaluation cannot be passed and drew out attention to the West Bengal School Service Commission (Selection of persons for appointment to the post of teachers) Rules, 2007. We do find that said Rules do not provide for any re-evaluation/re-examination of answer scripts. Mr. Gangopadhyay learned counsel for the appellants also relied on the following unreported decisions in rebuttal.
In AST 328 of 2006 AST 329 of 2006 (stay) (West Bengal Central School Service Commission and another vs. Smt. Ruplekha Gangopadhyay), it has been held that if there was no scope for scrutiny in the rules, there was no questions of the High Court going into the correctness or otherwise of the evaluation process or for that matter scrutiny of the answer scripts.
In W.P. No. 22670 (W) of 2014 (Rakesh Tarafdar vs. State of West Bengal & Others), although certain questions were correctly answered by the petitioner he was not awarded any marks therefore by the Commission and submission was similar as in the present case that on the basis of certain text books in his possession, to hold that the petitioner was entitled to marks which were not awarded.
In W.P. No. 5391 (W) of 2016 (Sk. Momim Islam vs. The State of West Bengal & Others), it has been held that in absence of any provision or practice for reassessment or scrutiny, no mandamus can be issued.
In W.P. No. 26521 (W) of 2016 (Abhiram Choudhury vs. The State of West Bengal & Others), the case was also dismissed by the writ court refusing to allow reassessment of any answer script in absence of any provision for reassessment.
It is submitted that since no appeal has been preferred against the aforementioned unreported decisions, findings have reached finality.
Having perused the aforesaid unreported decisions it transpired that if there was no scope for scrutiny in the Rules, there was no question of the High Court going into the correctness or others wise of the evaluation process or for that matter scrutiny of the answer scripts.
In Sk. Momim Islam (supra) the writ petitioner not being satisfied with the marks awarded in the examination for the post of headmaster had preferred an application under Right to Information Act, the learned Judge held that in absence of any provision or practice, no mandamus can be issued as mandamus can only be directed against the deprivation of any legal obligation on the parts of the authorities. Similarly in Abhiram Chowdhury (supra) since there is no provision of reassessment of any answer script and the questions attempted by the petitioner are being subjective in nature. It was held that the examiner rightly assessed the answered awarded marks. Accordingly, the writ petition was dismissed.
Learned counsel for the respondent in FMA No.407 of 2015 submitted that the refusal on the part of the concerned authority of West Bengal School Service Commission to re- evaluate the answer script would cause injustice to him for no fault on his part and in spite of being entitled to receive marks on answer to question no.29. Our attention has been drawn to the answer to question no.29 of the petitioner/respondent at Page 66 of the paper book with a request to compare the answer to the question no.29 at page 90 of paper book of a successful candidate. Admittedly, the respondent/ petitioner is unsuccessful in the competitive examination. It is pointed out that the answer to question no.29 of Mathematics Paper-I Hons./PG of the petitioner Tanuj Paul in comparison with answer to question no.29 of the said Mathematics Paper-I relating to a candidate who is the last selected candidate is the same and that the answer of the writ petitioner/respondent is correct as per evaluation made by Sanatan Das Assistant Professor in mathematics (Department of mathematics university of Gourbanga) Malda, certifying that the answer to question no.29 is mathematically correct. It is pointed out that though the writ petitioner attempted the question no.29 but he scored 'zero'. It appears to us that though the mathematically the petitioner may be correct in arriving at the required missing term being 18 but the steps are different.
It would be just and proper to reproduce the comparative marks secured by the petitioner with that of the another candidate being compared.
COMPARISION (From Paper Book) Marks obtained by the writ Marks obtained by the last petitioner in FMA 407 of 2015. scheduled candidate.
Q. No. Marks Q. No. Marks 1 1 2 2 3 3 4 4 5 2 5 2 6 1½ 6 7 0 7 8 2 8 9 2 9 10 0 10 11 0 11 12 0 12 13 1 13 2 14 14 0 15 15 2 16 16 1 17 17 0 18 18 0 19 19 0 20 2 20 2 21 1 21 1 22 22 0 23 23 2 24 24 25 25 26 26 27 27 28 28 29 29 2 30 2 30 0 Total 13 ½ Total 14
It would reveal from the above tabular representations that the marks awarded to them are not arbitrarily but are jotted down as per the marks awarded in their respective answer scripts.
In case of the writ petitioner/respondent Janaki Bala Sarkar and Anr. in MAT No.339 of 2013 arising out of WP No.15839 (W) of 2012 as many as 16 writ petitions were disposed of by a common judgment dated 10.10.2012 which is in appeal before this Court. The writ petitions were allowed by directing the West Bengal School Service Commission to re- examine or re-evaluate the answer scripts of the petitioners by examiners, other than by the examiners who had examined the answer scripts, within four weeks from the date of furnishing a copy of the certified copy of the order and thereafter, on the basis of the said re-examination or re-evaluation the Commission shall take steps in accordance with law on the observations that the petitioners have questioned the method of examination or evaluation, the commission cannot shirk its responsibility by denying re-examination or re-evaluation on the specious plea that similar competitive examinations conducted by the public authorities do not provide any method for holding re-examination or conducting re-evaluation of the answer scripts.
Relying on the preamble of the RTI Act and further the principle laid down by the Hon'ble Apex court in Institute of Chartered Accountant of India (supra) and the observation made in Paragraph 36 thereof in Karnataka State Financial Corporation vs. N. Narasimahaiah and Ors., the learned Judge was of the wishful thinking that the statute should be interpreted in a reasonable manner and Court must place itself in the chair of a reasonable legislature/authority. The learned Judge also relied on the decision in case of Pramod Kumar Srivastava vs. Chairman, Bihar Public Service Commission, Patna and Ors (2004) 6 SCC 714 and held that same was not applicable and bearing upon the observation in Sahiti and Ors. (supra), the learned Judge was of the opinion that the principle laid therein furthers the case of petitioners for re-evaluation of the answer scripts if factual scenario so demands.
It would be just to sum up the decisions relied on by the writ petitioners/respondents in Sahiti and Ors. vs. Chancellor, Dr. N.T.R University of Health Sciences & Ors. (supra) wherein the question which arose for consideration was whether the Vice-Chancellor had power to appoint Committee for re-verification of the answer scripts of the students? The Hon'ble Supreme Court held that the Vice-Chancellor had the power and observed that the award of marks by an examiner has to be fair and considering the fact that re-evaluation is not permissible under the statutes at the instances of the candidates, the examiner has to be careful, cautious and has the duty to ensure that the answers are properly evaluated. And where the authorities find that award of marks by an examiner is not fair or that the examiner was not careful in evaluating the answer scripts, re-evaluation may be found necessary. Therefore, the re-evaluation of the marks at the instance of the writ petitioner/respondent, in absence of any statutory provision cannot be ordered. (Emphasis given) In case of Kanpur University, through Vice-Chancellor and Ors. vs. Samir Ghpta & Ors. (supra) the respondents whose names did not figure in the list of successful candidates filed writ petitions in the High Court of Allahabad, contending that the answers ticked by them were correct and the key answers were wrong, the Hon'ble Supreme Court was of the view 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 rationalisation.
In Pramod Kumar Srivastava vs. Chairman, Bihar Public Service Commission it was observed in Paragraph 7 thus:
"7. Under the relevant rules of the Commission, there is no provision wherein a candidate may be entitled to ask for revaluation of his answer book. There is a provision for scrutiny only wherein the answer books are seen for the purpose of checking whether all the answers given by a candidate have been examined and whether there has been any mistake in the totalling of marks of each question and noting them correctly on the first cover page of the answer book. There is no dispute that after scrutiny no mistake was found in the marks awarded to the appellant in the General Science paper. In the absence of any provision for revaluation of answer books in the relevant rules, no candidate in an examination has got any right whatsoever to claim or ask for revaluation of his marks."
It is now a settled principle and clenched position of law held by the Hon'ble Apex court that the court should not examine answer sheet or order re-evaluation of the scripts unless there were compelling reasons or statutory provisions providing such remedy. That is to say, in the absence of any provision under the statute or statutory Rules/Regulations, the High Court should not generally direct revaluation of answer scripts and the court cannot take upon itself the task of the statutory Authorities.
The Hon'ble Apex Court in Maharashtra State Board of Secondary and Higher Secondary Education vs. Paritosh Bhupeshkumar Sheth reported in (1984) 4 SCC 27 held that it was the power of the Board to lay down rules for the purpose of evaluation of answer scripts in an examination. It was observed thus:
"It was perfectly within the competence of the Board, rather it was its plain duty, to apply its mind and decide as a matter of policy relating to the conduct of the examination as to whether disclosure and inspection of the answer books should be allowed to the candidates, whether and to what extent verification of the result should be permitted after the results have already been announced and whether any right to claim revaluation of the answer books should be recognised or provided for. All these are matters which have an intimate nexus with the objects and purposes 3 of enactment and are, therefore, within the ambit of the general power to make regulations conferred under sub-section (1) of Section 36."
On behalf of the writ petitioners/respondents in MAT No. 339 of 2013 it is submitted that the last wait candidate has been recommended for appointment who secured the same marks as that of the petitioner Janakibala Sarkar. In rebuttal it is submitted on behalf of the appellants that none of the wait list candidate has been recommended for appointment. It is argued on behalf of the appellants that the Regional Level Selection Test was conducted by the West Bengal Central School Service Commission which is a competitive examination conducted under the Rules framed under the West Bengal School Service Commission Act, 1997 for the purpose of appointment of teachers in the schools and the petitioners were well in the knowledge that there is no provision for re- examination or re-evaluation of the answer scripts and knowing fully well they participated in the said test and now they cannot turn back on being unsuccessful in the test examination to question the method of examination and to exercise its right of re-examination or re-evaluation of the answer scripts in absence of any provision in the said Act.
It is further contended that there is no provision in the Right to Information Act, 2005 wherefrom it can be said that same provisions which had not been legislated under the rule framed under the Act, such as West Bengal School Service Commission Act, 1997 and the Right to Information Act, 2005 cannot be used by the court for giving a direction to legislate a rule for re-examination or re-evaluation of the answer sheets in absence of such statutory rules in the Act of 1997.
We are fully in agreement with the submission of the learned counsel for the appellants relying on the settled principles of law that it is exclusively within the province of the legislative and its delegate to determine as a matter of policy, how the provision of the statute can best be implemented and what measures, substantial as well as procedural would have to be incorporated in the Rules or Regulations for the efficacious achievement of the objects purposes of the Act. The court cannot sit in judgment over the wisdom of the policy evolved by the legislature and to subordinate regulation making body. In the present case there is no allegation touching the transparency and accountability of Commission in conducting competitive examination for the appointment of teachers.
As per the information sought for vide application dated 23.06.2012 under Right to Information Act by the petitioner/respondent Janakibala Sarkar under Reference No.397/WBRSSC/NR dated 25.06.2012 the Secretary, West Bengal Regional School Service Commission, Northern Region, Malda gave information with regard to marks scored by applicant which is reproduced hereunder:
Marks Scored by applicant Paper - I Paper - II ACADEMIC PT TOTAL 48.50 1.50 15.00 3.83 68.83 Marks scored by last empanelled candidate (SC) Paper - I Paper - II ACADEMIC PT TOTAL 45.00 4.00 16.00 4.00 69.00 Marks scored by First empanelled candidate (SC) Paper - I Paper - II ACADEMIC PT TOTAL 46.50 3.00 18.00 2.83 70.33 Marks scored by Last Waitlisted candidate (SC) Paper - I Paper - II ACADEMIC PT TOTAL 44.00 2.00 19.00 3.83 68.83 It would be apt to reproduce the tabular presentation of the marks secured by the petitioner/respondent in Paper-I, History (pass) as under:
Q. No. Marks 1 2 2 2 3 1.5 4 2 5 2 6 1 7 2 8 2 9 0 10 00 11 2 12 2 13 1.5 14 2 15 1 16 1 17 2 18 1.5 19 1 20 2 21 2 22 2 23 1.5 24 2 25 1.5 26 1 27 2 28 1.5 29 1 30 1.5 Total 48.5 It appears that the respondent/petitioner Janakibala Sarkar scored 48.5 out of 60 marks. On her behalf challenge is in respect of question being what is Tripikaka the answer given is as per the model answer and as per the text book. It would reflect that the petitioner/respondent was awarded 1.5 marks out of 2 in respect of the question no. 3 of history paper.
Learned counsel for the respondent/petitioner Janakibala Sarkar has placed reliance on a decision in case of Union of India vs. Association for Democratic Reforms and Anr. reported in AIR 2002 Supreme Court 2112 wherein it has been observed thus:
"It is not possible for the Supreme court to give any directions for amending the Act or the statutory Rules. It is for the Parliament to amend the Act and the Rules. It is also established law that no direction can be given, which would be contrary to the Act and the Rules. However, it is equally settled that in case when the Act or Rules are silent on a particular subject and the Authority implementing the same has constitutional or statutory power to implement it, the Court can necessarily issue directions or orders on the said subject to fill the vacuum or void till the suitable law is enacted."
This decision in our considered view is not apposite to the facts and circumstances of this case as in the cited case the matter of direction issued to Election Commission was pertaining to information regarding assets, educational qualification and criminal cases against the contesting candidates to be given on affidavit while filing nomination paper for contesting election.
Learned counsel for the respondent/petitioner Janakibala Sarkar has further relied on a decision in case of Sanjay Sing & Anr. vs. U.P. Public Service Commission, Allahabad & Anr. reported in (2007) 3 SCC 720 wherein the Hon'ble Apex Court with regard to the infirmity and consistency in valuation of the answer scripts observed in Paragraph 23 thus:
"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 examiners evaluate the answer-scripts relating to a subject, the subjectivity of the respective examiner will creep into the marks awarded by him to the answer- scripts allotted to him for valuation. Each examiner will apply his own yardstick to assess the answer- scripts. Inevitably therefore, even when experienced examiners receive equal batches of answer-scripts, there is difference in average marks and the range of marks awarded, thereby affecting the merit of individual candidates. This apart, there is "hawk- dove" effect. Some examiners are liberal in valuation and tend to award more marks. Some examiners are strict and tend to give less marks. Some may be moderate and balanced in awarding marks. Even among those who are liberal or those who are strict, there may be variance in the degree of strictness or liberality. This means that if the same answer-script is given to different examiners, there is all likelihood of different marks being assigned. If a very well- written answer-script goes to a strict examiner and a mediocre answer--script goes to a liberal examiner, the mediocre answer-script may be awarded more marks than the excellent answer- script. In other words, there is "reduced valuation"
by a strict examiner and "enhanced valuation" by a liberal examiner. This is known as "examiner variability" or "hawk-dove effect". Therefore, there is a need to evolve a procedure to ensure uniformity inter se the examiners so that the effect of "examiner subjectivity" or "examiner variability" is minimised. The procedure adopted to reduce examiner subjectivity or variability is known as moderation. The classic method of moderation is as follows:
(i) The paper-setter of the subject normally acts as the Head Examiner for the subject. He, is selected from amongst senior academicians/scholars senior civil servants/ judges. Where the case is of a b large number of candidates, more than one examiner is appointed and each of them is allotted around 300 answer--scripts for valuation.
(ii) To achieve uniformity in valuation, where more than one examiner is involved, a meeting of the Head Examiner with all the examiners is held soon after the examination. They discuss thoroughly the question paper, the possible answers and the weightage to be given to various aspects of the answers. They also carry out a sample valuation in the light of their discussions. The sample valuation of scripts by each of them is reviewed by the Head Examiner and variations in assigning marks are further discussed. After such discussions, a consensus is arrived at in regard to the norms of valuation to be adopted. On that basis, the examiners are required to complete the valuation of answer--scripts. But this by itself, does not bring about uniformity of assessment inter se the examiners. In spite of the norms agreed, many examiners tend to deviate from the expected or agreed norms, as their caution is overtaken by their propensity for strictness or liberality or 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. The process of random sampling usually consists of scrutiny of some top level answer-scripts and some answer books selected at random from the batches of answer-scripts valued-by each examiner. The top level answer books of each examiner are revalued by the Head Examiner who carries out such corrections or alterations in the award of marks as he, in his judgment, considers best, to achieve uniformity. (For this purpose, if necessary certain statistics like distribution of candidates in various marks ranges, the average percentage of marks, the highest and lowest award of marks, etc. may also be prepared in respect of the valuation of each examiner.)
(iv) After ascertaining or assessing the standards adopted by each examiner, the Head Examiner may confirm the award of marks without any change if the examiner has followed the agreed norms, or suggests upward or downward moderation, the quantum of moderation varying according to the degree of liberality or strictness in marking. In regard to the top level answer books revalued by the Head Examiner, his award of marks is accepted as final. As regards the other answer books below the top level, to achieve maximum measure of uniformity inter se the examiners, the awards are moderated as per the recommendations made by the Head Examiner.
(v) If in the opinion of the Head Examiner there has been erratic or careless marking by any examiner, for which it is not feasible to have any standard moderation, the answer scripts valued by such examiner are revalued either by the Head Examiner or any other examiner who is found to have followed the agreed norms.
(vi) Where the number of candidates is very large and the examiners are numerous, it may be difficult for one Head Examiner to assess the work of all the examiner. In such a situation, one more level of examiners is introduced. For every ten or twenty examiners, there will be a Head Examiners 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. Therefore, the issue involved in the cited decision is distinguishable from the facts and circumstances of the instant case.
This was the case in which the challenge was with regard to the method of examination and evaluation of the answer scripts. Learned counsel for the appellants invited our attention to Rule 12 of West Bengal School Service Commission (Selection of process for appointment to the post of teachers) Rules 2007 which provides for selection of candidates on the preparation of panel for the post of Assistant Teachers and these Rules do not provide for re-evaluation on re-examination of the answer scripts of the unsuccessful candidate. We do find that there is no allegation against the examiners being biased or of any corrupt practice in the said examination. The writ petitioner/respondent of FMA 407 of 2015 contention is that he summed up the Question No. 29 of Mathematics paper correctly but the examiner awarded him zero marks. Mathematically the answer was found correct but we have observed that the steps were not according to the formula. So the marks was nil as against the question no. 29 of the mathematics paper. As regards history paper of the petitioner/respondent namely Janakibala Sarkar marks being 1.5 was awarded out of 2 marks which in our opinion was on consideration by the examiner in the context of the handwriting and overall performance of the candidate. Such challenge is not tenable in law inasmuch as there being no provision for re- evaluation or re-examination of the answer scripts, the writ court ought not have given direction to lay down a rule for re- evaluation since the Rules pertaining to method of examination was not under challenge.
Giving an anxious consideration to the rival contentions of learned counsel for the parties, on perusal of the judgments impugned, bearing in mind principles of law settled on the issue and for the reasons recorded hereinabove by this Court, we find the judgments impugned being devoid of any merit and liable to be set aside.
Accordingly, the impugned judgment dated 10/10/2012 passed in W.P. No.15839 (W) of 2012 and judgment dated 18/12/2012 passed in W.P. No.18407 (W) of 2012 are hereby set aside and the appeals are allowed, however, we make no order as to costs.
Urgent certified photocopy of this Judgment, if applied for, be supplied to the parties upon compliance with all requisite formalities.
(Rakesh Tiwari, J.) (Shivakant Prasad, J.)