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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.

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."

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.

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.