Gautambhai Govindlal Bhatt vs Gujarat Secondary Education Board

B.C. Patel, J.—This petition is placed before this Bench as the learned single Judge, taking up such matters, was unable to agree with the

view taken by another learned single Judge.

The petitioner''s son, having a brilliant academic career, secured 80.86% marks in the new S.S.C. examination conducted by the Gujarat

Secondary Education Board (hereinafter referred to as ""the Board"") in the year 1998. In the month of March, 2000, petitioner''s son appeared for

Science Stream examination, where his son secured 392 out of 450 marks in Mathematics, Physics, Chemistry and Biology. Being dissatisfied with

the result declared by the Board, particularly with respect to Physics paper, an application for reassessment was made. On 7th June, 2000, the

Board called upon the petitioner''s son to remain present, where, in the presence of all the concerned persons, Officer of the Board found that

there was an error in carrying forward for totalling. Petitioner''s son was given 17 marks in question No. 2, but, on the first page of answer-sheet,

instead of 17, 7 marks were put. This was obviously an error, which was corrected and the petitioner''s son was given 90 marks instead of 80

marks. Matter did not rest there, but the petitioner has come out with a grievance that Physics paper was not properly checked, and if there would

have been proper examination of the answers, there would have been three more marks and his son would have been in the merit list at Serial No.

742, after march over 134 students. It is alleged in the petition that question No. 4(a)(1) was property answered. Answer which was given was as

per the books published by the Government of Gujarat. It was identical and on the same line, as is referred to in the standard book published by

the Government. In view of this, it is stated that he should have been given full marks with regard to question No. 4(a)(1). He has made grievance

with regard to question No. 5(d) also, stating that as per the book published by Navnit Publication Limited, the student has answered the question.

He was given two marks instead of three marks, and thus, it appears that the student himself has reassessed and has claimed that mark should have

been given as per his own assessment and not as per the assessment made by the teacher/ examiner.

Catena of decisions of this Court on the subject state that the student himself could not have formed a subjective opinion about his own

performance as if he was the examiner and could not have come to the conclusion that his papers were undervalued. Division Bench in case of

Rajendra R. Dave Vs. Gujarat Secondary Education Board and Another, has considered this question. It is pointed out by the Court that if such

an opinion is permitted to be canvassed, every student will state that, in his opinion, his answer books have been undervalued and that they should

be reassessed. The Court has pointed out that the performance shown by a student at home cannot in law be made the subject-matter of a prima

facie opinion as regards performance in the examination hall. The Court has pointed out that unless mala fides or malpractice is alleged against

examiners, moderators or the Board, the High Court should not interfere with the evaluation of answer books of a student, who has appeared at

the examination.

It is required to be noted that before us, learned Advocate appearing for the petitioner, was not able to place on record any rule permitting

revaluation. The examinations are held and results are declared in accordance with the conditions laid down under the law. Re-totalling of the

marks is permissible, but there is no question of reassessment. The Division Bench also pointed out that in working of autonomous bodies, Court

should not interfere unless mala fides or malpractice is alleged.

Learned single Judge, while disagreeing with the views expressed by another learned single Judge of this Court in Special Civil Application No.

5497 of 1997, has considered the decision of this Court and the decision of the Apex Court, and referred the matter to Division Bench. The

decisions are:

(1) Priti M. Dalai v. Gujarat Secondary Education Board 1980 (2) GLR 296,

(2) Rajendra R. Dave Vs. Gujarat Secondary Education Board and Another, , (3) Mrs. Kusum Nitin Diwanji and Another Vs. Gujarat Secondary

Education Board, and (4) Parekh Salonee Kishorbhai Vs. Gujarat Secondary Education Board, . Over and above the aforesaid decisions, the

learned single Judge, while referring the matter, has considered the decisions of the Apex Court in Kanpur University and Others Vs. Samir Gupta

and Others, . Learned single Judge, while referring the matter, has opined that the decision of Apex Court in case of Kanpur University v. Samir

Gupta, (supra) has been correctly explained by R. K. Abichandani, J. in case of Parekh Salonee Kishorbhai (supra). Learned single Judge has also

expressed an opinion that the decision of the Supreme Court in case of State of Orissa v. Prajnaparamita Samanta, (1996) 7 SCC 106 President,

Board of Secondary Education v. D.Suvankar 2006 JT 10 , does not confer or create a right to reassessment contrary to what has been held in

the above two decisions of the Division Bench in the context of the Regulations of the Secondary Education Board.

So far as the system of examining the papers is concerned, on behalf of the State, instructions given to the teachers and moderators are placed

before us. It appears that the questions are to be examined by different teachers, i.e. to say, one teacher will examine only one question. Teacher

has to put the total number of marks awarded after examining the question. On the first page of the answer-sheets if the marks are less than 35%

or more than 70%, then, such marks are subjected to moderation. Thus, proper care is to be taken. Over and above this, it is submitted that even

the seat numbers of the examinees are coded and therefore, the examiner examining the paper would not know whose paper he is examining.

Before us, an attempt was made by stating that in view of Key Answer as the student has written the answer, he should be given full marks.

Reliance is placed on the decision of the Apex Court in case of Abhijit Sen and Others Vs. State of U.P. and Others, and in case of Kanpur

University v. Samir Gupta (supra). These two cases were pertaining to ""Key Answer"". In case of Kanpur University (supra), what is observed in

paragraphs 16 and 17 is required to be considered :-

Shri Kacker, who appears on behalf of the University, contended that no challenge should be allowed to be made to the correctness of a key

answer unless, on the face of it, it is wrong. We agree that the key answer should be assumed to be correct unless it is proved to be wrong and

that it should not be held to be wrong by an inferential process of reasoning or by a process of rationalization. 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. The

contention of the University is falsified in this case by a large number of acknowledged textbooks, which are commonly read by students in U.P.

Those text books leave no room for doubt that the answer given by the students is correct and the key answer is incorrect.

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 ....

This decision was considered by the Apex Court in case of Abhjit Sen (supra). The Court also pointed what ""Key Answer"" is. It reads as under :-

... Suffice it to say that this Court has expressed therein a clear and categorical view that if the ''Key-Answer'' (i.e. the answer which the paper-

setter has supplied to the University as the correct answer and which has been fed into the Computer) is shown to be demonstrably wrong, that is

to say, such as no reasonable body of men well-versed in the particular subject would regard it as correct and if the answer given by a student is

correct if regard be had to acknowledge text-books or books which the student was expected to read and consult before appearing for the test it

would be unfair to penalise the student for not giving an answer which accords with the ''Key-Answer'' that is to say with an answer which is

demonstrated to be wrong ....

In the instant case, it is not the case of the petitioners that the Key-Answer was given to the examiners and that they were required to consider

the answer on the basis of the Key-Answer supplied for the purpose of examining the papers. Before the Apex Court, the question was quite

different than the question raised before us. It is not the case of a Key-Answer and it is not the case that the answer given was not accepted as the

correct one. The examiner has, in fact, examined the answers and has given the marks. Even in case of Mathematics, where answer may be

absolutely right, but while answering the question, if the student has omitted certain steps or has adopted a different method for answering the

question, it is for the teacher concerned to consider it as a complete correct answer or not and to decide that in case of omission of a particular

step, what mark should be given and it is not for the Court to assess the situation. Examination of the papers is within the domain of the teacher and

when reassessment is not permissible, it cannot be urged before the Court that what the student has answered is correct and the mark should be

given. It is our bounden duty to refer to Apex Court judgment in case of Maharashtra State Board of Secondary and Higher Secondary Education

and Another Vs. Paritosh Bhupeshkumar Sheth and Others, . In paragraphs 27 and 28, the Court held as under :-

The High Court has relied upon the fact that the University of Bombay and some other Universities have recently made provisions permitting

candidates to demand revaluation. In our opinion, this has little relevance for the purpose of deciding about the legal validity of the impugned

regulations framed by the Board. We do not know under what circumstances, the University of Bombay has decided to recognize a right in the

examinees to demand a revaluation. As far as the Board is concerned, it has set out in the counter-affidavit the enormity of the task with which it is

already faced, namely, of completing twice during each year the process of evaluation and release of results of some 3 lakhs of candidates,

appearing for the S.S.C. and H.S.C. examinations to be held in an interval of only a few months from one another. If the candidates are all to be

given inspection of their answer books or the revaluation of the answer papers is to be done in the presence of the candidates, the process is

bound to be extremely time-consuming and if such a request is made by even about ten percent of the candidates who will be 30,0000 in number,

it would involve several thousands of man hours and is bound to throw the entire system out of gear. Further, it is in the public interest that the

results of Public examinations when published should have some finality attached to them. If inspection, verification in the presence of the

candidates and revaluation are to be allowed as of right, it may lead to gross and indefinite uncertainty, particularly in regard to the relative ranking

etc. of the candidates, besides leading to utter confusion on account of the enormity of the labour and time involved in the processes.

As pointed out by a Constitution Bench of this Court in Fatehchand Himmatlal and Others Vs. State of Maharashtra, . If the principle laid

down by the High Court is to be regarded as correct, its applicability cannot be restricted to examinations conducted by School Educational

Boards alone, but would extend even to all competitive examinations conducted by the Union and State Public Service Commissions. The resultant

legal position emerging from the High Court judgment is that every candidate who has appeared for any such examination and who is dissatisfied

with his results would, as an inherent part of his right to ''fair play'' be entitled to demand a disclosure and personal inspection of his answer scripts

and would have a further right to ask for revaluation of his answer papers. The inevitable consequence would be that there will be no certainty at all

regarding the results of the competitive examination for an indefinite period of time until all such requests have been complied with and the results of

the verification and revaluation have been brought into account ....

In paragraph 29, the Court has pointed out :-

Far from advancing public interest and fair play to the other candidates in general, any such interpretation of the legal position would be wholly

defeasive of the same. As has been repeatedly pointed out by this Court, the Court should be extremely reluctant to substitute its own views as to

what is wise, prudent and proper in relation to academic matters in preference to those formulated by professional men possessing technical

expertise and rich experience of actual day-to-day working of educational institutions and the departments controlling them. It will be wholly wrong

for the Court to make a pedantic and purely idealistic approach to the problems of this nature, isolated from the actual realities and grass-root

problems involved in the working of the system and unmindful of the consequences which would emanate if a purely idealistic view as opposed to a

pragmatic one were to be propounded. It is equally important that the Court should also, as far as possible, avoid any decision or interpretation of

a statutory provision, ""rule or bye-law which would bring about the result of rendering the system unworkable in practice. It is unfortunate that this

principle has not been adequately kept in mind by the High Court while deciding the instant case ....

We now propose to examine the decision rendered by the learned single Judge in case of Lakshmi Z. Ghevariya v. Gujarat Secondary

Education Board in Special Civil Application No. 5177 of 1996 decided on 6-9-1996. This decision has been considered by a learned single

Judge of this Court in case of Parekh Salonee (supra) and in paragraph 9 of the judgment, learned single Judge pointed out as under :-

... That decision does not lay down any general proposition of law and cannot be read in a manner that would bring a conflict with the aforeaid

two Division Bench judgments, which were not cited before my esteemed brother ....

From the text of the judgment, it appears that neither the Advocate appearing for the petitioner nor the Advocate appearing for the respondent

thought it proper to draw the attention of the Court to the legal position in the subject matter. In our opinion, the Court ought to have considered

the precedents which are binding in nature. In paragraph 5 of the judgment, the learned single Judge has observed as under :-

... 5. At the time of argument what has been stated by the learned Counsel for the respondent that the examiner on being questioned about this has

explained that he has given full marks to those who has written the name of each substance denoted by its expression in formulae has been

awarded full marks and those who have simply completed the equations without giving names of the substance in terms of formula expression have

not been awarded full marks ....

The learned Judge thereafter has observed that :-

... This appears to be a complete afterthought devised to explain this unusual conduct. Expression of substance name does not appear to

requirement of question and demand of answer. Nor that is the expected treatment of said question. In spite of given several opportunity for the

purpose, respondent was unable to ascertain that this was the uniform criterion applied to all students who appeared at the said examination in

respect of the question. Most number of students answering in the same have received full marks for their attempt. Permitting different norms in

such type of questions/answers in allotting marks results in , serious inequalities affecting careers of students at the whim of one single examiner out

of many, by putting some students at a greatly disadvantageous position in competing claim of merit without any basis, merely by adopting an

irrelevant consideration for awarding marks by him ....

It is required tp be noted that the name of the substance is required to be indicated with a view to understand that the student has mentioned

formula with understanding or without understanding. If the teacher has thought fit to give marks to a student, who has properly understood the

formula by giving the name of the substance, then it cannot be said that he was not justified in giving full marks. If a student has written the formula

but has wrongly named the substance, it may be that a student has either not understood the formula in the context with the substance or has

answered without understanding. He might have understood the formula but not able to name the substance, then it cannot be said that he has

understood the substance and formulae. In such a case, it cannot be said to be a case of Key Answer. If substance is given and the student has to

write a formula or vice versa, it can be understood. But not in the case like the present one. The teacher has examined and has not given full marks,

meaning thereby answer was not as expected, but as student has made an attempt to answer correctly, the teacher has given some marks. If the

student would have mentioned formula and the name of substance, the teacher could have come to the conclusion that the student has really

understood the question and has answered. In our opinion, there was no yardstick before the learned single Judge like the key answer. On the

basis of conjectures, the learned single Judge could not have sat in appeal over the assessment made by the teacher and it was not permissible for

the learned single Judge to examine the question as if the Court was permitted to reassess the answers if an expert is reassessing the same. In view

of the settled legal position, we are of the opinion that the decision rendered by the learned single Judge is no longer good law and so far as the

question of law is concerned, the aforesaid decision is to be taken as overruled by us.

In the result, the Special Civil Application stands rejected.

Application dismissed.