Subham Banerjee vs Board of Secondary Education and Others

A.K. Patnaik, J.—This writ petition has been filed by a candidate of High School Leaving Certificate Examination conducted by the Board of Secondary Education, Assam (for short ''the Board) for directing the Respondents to announce the results of revaluation of his answer scripts and for a direction for revaluation of the answer scripts of the Petitioner by examiners other than those of the Board.

The brief facts as stated in the writ petition are that the Petitioner appeared in the High School Leaving Certificate Examination conducted by the Board in March ''97 with Roll No. 219 and Code No. 0453. His case is that he was a student of Don Bosco High School, Guwahati whose students are known for excellent performance in the High School Leaving Certificate Examination and he was sure of obtaining at least First Division Marks. But when the results of the examination were announced on 18.6.97 the Petitioner was surprised to learn that he got Second Division with total marks of 523, which were short of First Division by 17 marks. On receipt of his mark sheet therefore he applied for revaluation of all his answer scripts except Hindi and Fine Arts and deposited a sum of Rs. 250/- on 8.7.97 for such revaluation. But the results of such revaluation were not announced. The Petitioner, therefore, sent a notice dated 14.9.97 through his Advocate Dr A.K. Bhattacharjee to the Board to announce the results of the revaluation of his answer scripts as requested by him. But he did not receive any reply to the said notice of his Advocate. Aggrieved, the Petitioner has filed this writ petition for appropriate reliefs. An affidavit-in-opposition has been filed on behalf of the Respondent Nos. 1,2,3 and 4 stating inter alia that no such notice was received by the Board from the Advocate of the Petitioner and that the re-examination was done in accordance with the Regulations and the results of the re-examination were notified vide notification dated 9th July, 1997 of the Board and thereafter the answer scripts were disposed of after 6 months after publication of the results by selling die same to one Sri Dipak Sarma on 31.3.98, 9.4.98, 17.4.98 and 18.4.98.

At the hearing Dr A.K. Bhattacharjee, learned Counsel for the Petitioner, submitted that in the notification dated 19.7.97 annexed to the affidavit-in-opposition by the Respondent Nos. 1 to 4, the name and Roll number of the Petitioner is not mentioned and therefore the result of the re-valuation for which he deposited fees of Rs. 250/- on 8.7.97 have not been announced by the Board so far. Dr Haren Das, learned Counsel appearing for the Respondents, on the other hand, referred to the provisions of Regulation 48 of the Regulations for the conduct of the examinations by the Board framed u/s 24 of the Assam Secondary Education Act, 1961 and submitted-that the said regulation only provided for re-examination of the answer scripts but did not provide for any revaluation of the answer scripts. He contended that since there was no provision in the said regulations for revaluation of the answer scripts of the Petitioner, the request for revaluation made by the Petitioner is misconceived. He stated that the notification dated 19th July ''97 issued by the Secondary of the Board, copy of which has been annexed to the affidavit-in-opposition of Respondent Nos. 1, 2, 3 and 4 as Annexure ''B'' would show that in cases where re-examination was requested and it was found that there were mistakes in the totalling or entry of marks, the results were revised. According to Dr. Das, since re-examination of the answer scripts of the Petitioner did not reveal any such discrepancy, his results were not revised and remain the same.

Regulation 48 of the Regulations for conduct of examinations by the Board framed u/s 24 of the Assam Secondary Education Act, 1961 is extracted herein below:

A candidate may apply for reexmination of scripts to maximum of 5 papers or three subjects by paying necessary fees as determined by the Board and within such time as fixed by the Board from time to time provided that:

a) Re-examination shall not mean revaluation of die scripts. Re-examination shall consist of re-totalling of marks answered by the examiner and/or,

b) Assessment of answer (s) which has/have been left out unevaluated and/or

c) Correction of wrong entry of marks of any manner/nature.

It is clear from the language of Regulation 48 quoted above that a candidate may apply for re-examination of his answer scripts, but such re-examination would not mean revaluation of the scripts. Therefore, any request of the Petitioner for revaluation of his answer scripts could not be considered by the Board under the aforesaid statutory regulations. The answer scripts of the Petitioner, however, could only be examined and if on re-examination, it was found that there were mistakes in totalling of the marks awarded by the examiners, the same could be corrected. Further, if any answer in the answer scripts of the Petitioner remained un-evaluated, the same could be assessed. Correction of wrong entry of marks of any nature could also be made at the time of such re-examination. But under the said Regulation 48 there is no scope whatsoever for re-valuation of the answers which are already evaluated by the examiners. It appears from the copy of the notification dated 19th July ''97 issued by the Secondary of the Board that the first list comprises of candidates in whose cases discrepancies were detected at the time of such re-examination and the results were accordingly revised. In this first list of candidates in whose cases discrepancies were detected the name and Roll number of the Petitioner does not find place. It further appears from the notification dated 19th July ''97 that the second list comprises of the candidates whose answer scripts were still under examination and the results were to be declared shortly. In the said second list also the Roll number of the Petitioner does not find place. At the bottom of the said list, however, it is stated that no discrepancies were detected in the cases of other applicants who applied for re-examination by 11th July ''97. It is thus clear that no discrepancies have been detected in the case of the Petitioner who applied for re-examination on 8.7.97, and the contention of the Petitioner that the results of the reexamination of his answer scripts have not been announced by the Board is not correct.

It was next submitted by Dr. A.K. Bhattacharjee, learned Counsel for the Petitioner, that the decision of the Supreme Court in the case of State of Orissa v. Prajnaparamita Samanta, (1996) 7 SCC 106 President, Board of Secondary Education v. D.Suvankar 2006 JT 10 would show that the Court can in exercise of its power of judicial review direct revaluation of answer scripts of the examinees. According to Dr Bhattacharjee, therefore, the law that no revaluation of the answer papers of the candidate was permissible has undergone a great change and in appropriate cases the Court could always direct for revaluation of answer papers for the purpose of ensuring justice to a candidate undertaking the examination. Dr Haren Das, learned Counsel for the Respondent on the other hand, relied on the decision of the Supreme Court in the case of Maharashtra State Board of Secondary and Higher Secondary Education and Another Vs. Paritosh Bhupeshkumar Sheth and Others, in which the Supreme Court observed that it is in the public interest that finality should be attached to the results of public examinations and revaluation was not allowed as of right and that the Court should be extremely reluctant to substitute its own views for those of professional men possessing technical expertise and rich experience of actual day to day working of educational institutions.

There is a lot of force in the aforesaid submission of Dr. Haren Das, learned Counsel for the Respondents that in the matters relating to valuation of answer papers of candidates in an examination, the Court would be hesitant to interfere with revaluation of answer scripts made by the experts in the field. In the case of State of Orissa v. Prajnaparamita Samanta (supra) cited by Dr. A.K. Bhattacharjee, learned Counsel for the Petitioner, the Court found on the basis of a report of the experts of the Delhi University in the subjects of Chemistry, Botany and Zoology that the key answers given by the students were correct, but they were not given the marks for the said answers and in these circumstances held that the order of the High Court directing revaluation of the answer papers of the students did not suffer from any infirmity. In the said decision, moreover, the Supreme Court cautioned that normally the Courts do not examine such grievances and sit in appeal over the decision of the examining bodies. Further a reading of Regulation 32(iii) of the Regulations for conduct of examinations by the Board casts a duty on the examiner to examine the answer scripts with due care, calmness and precision, justice, equity and fairness and without any bias, prejudice and emotion. Regulation 31(ii) further provides that the Head Examiner will examine 5% of the answer scripts examined by each examiner to ascertain the standard of his examinations and ensure that instructions have been carried out fully by the examiner. Regulation 31(iii) of the aforesaid Regulations further stipulates that if, as a result of such examination, the Head Examiner finds any undermarking or over marking in any paper, he may add or deduct, as the case may be, such marks as he deems justified provided that total addition or deduction will not exceed 10% of the total marks of the paper, but if the Head Examiner is of the opinion that a packet requires reexamination, he will take necessary action and submit a note in his report.

The aforesaid provisions in the regulations are meant to ensure that examination of the answer scripts of the candidates by the examiners is done with due care and precision and with justice, equity and fairness. With such provisions in the Regulations for conduct of examination by the Board, the Court will not normally interfere and direct revaluation of the answer papers of a candidate unless it is satisfied on the basis of the adequate materials place before it that despite the said provisions in the regulations there are grounds to believe that the candidate has suffered injustice in the evaluation of his answers in the answer scripts.

Dr. A.K. Bhattacharjee, learned Counsel for the Petitioner, however, submitted that there were such materials in this case. He referred to the mark sheet of the Petitioner to show that while the Petitioner has secured 61 marks out of 100 marks in the first paper of second language English, he has secured only 23 marks out of 50 marks in the second paper of the said subject. Similarly, he pointed out that while the Petitioner secured 65 marks out of 100 marks in the first paper of General Science, he has secured 23 marks out of 50 marks in the second paper of the said subject. He further pointed out that in the first paper of General Mathematics, he was secured 68 marks out of 100 marks but has secured only 20 marks out of 50 marks in the second paper of the said subject. According to Dr. Bhattacharjee, the aforesaid marks of the Petitioner would show that the Petitioner has been given less marks in the second papers of English, General Science and General Mathematics and that he should have been given at least 30 marks out of 50 marks in each of the said second papers of the subjects English, G. Science and G. Mathematics as he had secured more than 60% marks in the first paper of each of the aforesaid subjects.

The aforesaid submission of Dr. Bhattachaijee is based on the assumption that the standard of evaluation was the same for the first paper and the second paper for the aforesaid subjects English, G. Science and G. Mathematics. It is quite possible that the standard of evaluation in the second paper in the aforesaid three subjects was higher than the standard of evaluation for the first paper. Similarly, it is quite possible that the questions in the second paper of the aforesaid three subjects were found more difficult than the answers to the questions of the first paper. Further it is also possible that the Petitioner was not so well prepared for the second papers of the subjects as he was prepared for the second papers of the subjects. There may be several factors to explain the difference in the marks of the Petitioner in the first and second papers of the three subjects. Moreover, as suggested by Dr. Haren Das, learned Counsel for the Respondents, model answers may have been given to the examiners for the purpose of evaluation of the answer papers in which case the scope for under evaluation would be minimal. It is therefore difficult for this Court to come to a definite conclusion that in the present case the evaluation of the answer scripts of the Petitioner in the second papers of English, G. Science and G. Mathematics was unfair, arbitrary and unjust so as to call for any interference by this Court in exercise of its power under judicial review.

Dr. Bhattacharjee submitted that pursuant to the orders passed by this Court the Board should have produced the answer scripts of the Petitioner and that the stand taken by the Respondents in their affidavit-in-opposition that the answer scripts have been disposed of should be rejected by the Court as there is no provision in the Assam Secondary Education Act, 1961 for disposal of the records though there is a provision in the Gauhati University Records (Preservation and Destruction) Rules, 1970 for destruction of records which do not apply to the Board. Dr Bhattacharjee cited the decision of the Madhya Pradesh High Court in Ku. Rashmi Bala Saxena and Others Vs. Jiwaji University, Gwalior and Others, and the decision of the Patna High Court in the case of Sheodhari Prasad Sah Vs. State of Bihar and Others, in support of his submission that as the answer scripts are not made available a direction should be given to the Respondents to grant 30 marks of 50 marks to the Petitioner in his second papers in English, G. Science and G. Mathematics on the basis of the average marks secured by the Petitioner in his first papers in the said three subjects. Dr. Bhattacharjee also relied on a recent decision of the Supreme Court in the case of C. Tulasi Priya Vs. A.P. State Council of Higher Education and Others, in which the Supreme Court held that the High Court should have drawn adverse inference against the authorities for not producing the answer scripts and issued appropriate directions. Dr Das, learned Counsel for the Respondents, on the other hand, relied on Regulation 47 of the Regulations for conduct of examinations by the Board which provided that all records including the answer scripts shall be preserved for 6 months only from the date of announcement of the results of the concerned examination after which the same shall be disposed of in a manner as decided by the Board. He submitted that in accordance with the said Regulation 47 of the statutory Regulations the answer scripts of the Petitioner were disposed of in March and April, 1998 before this Court passed orders on 8.6.98 directing the Board to produce the answer scripts.

On a reading of the Assam Secondary Education Act, 1961 (for short "the Act), I find that the Act does not make any specific provision for disposal or destruction of any record of the Board but Section 3(xxvii) of the Act confers the power on the Board to do all such acts and things as may be necessary to carry out the purposes of the Act and Section 23(1) of the Act empowers the Board to make Regulations for the purpose of carrying out the provisions of the Act. In exercise of its powers u/s 24 of the Act, the Board has made the Regulations for Conduct of Examinations by the Board and Regulation 47 of the said Regulations is to the following effect:

All records except the Manuscripts/Tabulation Registers will be preserved for 6 months only from the date of announcement of the results of the concerned examination, after which those will be disposed of in the manner as the Board decides.

It is thus clear that the records such as the answer scripts of the candidates are required to be preserved for 6 months only from the date of announcement of the results of the concerned examination after which they were to be disposed of in the manner as decided by the Board. Therefore, the answer scripts of the Petitioner were required to be preserved only for a period of 6 months from March, 1997 when the examinations were held and were to be disposed of thereafter in the manner as decided by the Board. The order sheet in this case, however, shows that on 26.2.98, Mr. H.N. Sarma, learned Sr. G.A. Assam, undertook to comply with the direction given by the Court for producing the answer scripts of the Petitioner. But Mr. Sarma was not the Advocate of the Board and the said order dated 26.2.98 for producing of the answer script of the Petitioner does not appear to have been communicated to either the Board or the Advocate of the Board. On 8.6.98, however, the learned Advocate for the Board Dr Das was asked by the Court to produce the answer scripts if they were available with the Board. But on 11.9.98 affidavit-in-opposition was filed by the Board stating that the answer scripts of the candidates taking the examination were disposed of by way of sale on 31.3.98, 9.4.98, 17.4.98 and 18.4.98, ie. prior to 8.6.98 when the Court asked the learned Advocate of the Board to produce answer scripts. On these facts, it is difficult to hold that the Board acted contrary to the provisions of Regulation 47 and committed any wrong in disposing of the answer scripts of the Petitioner.

In the case of Reshmi Bala Saxena v. Jiwaji University Gwalior (supra), the Madhya Pradesh High Court upheld the action of the University in declaring a candidate as passed on the basis of average marks awarded for the first paper as her answer book was lost while it was in the custody of the Central Superintendent. In the case of Sheodhari Prasad Sah v. State of Bihar (supra) the Court directed production of answer book but the same was not produced and the Patna High Court held that the Respondents could not take advantage of their own wrong in not producing the answer book and directed the Respondents either to grant average marks to the Petitioner in the subject of General Knowledge on the basis of marks already obtained by him in other subjects or to take up his fresh examination in the same subject within 16 days. In the case of C. Tulsi Priya (supra), the Supreme Court found that the Appellant was in die first instance supplied the wrong answer paper which was subsequently replaced by corrected answer paper and the Appellant''s grievance was that she should have been given extra time to answer the objective type of questions. The Supreme Court took the view that if both the answer books were produced, the case of the Appellant that she had marked the wrong answer book for 20 minutes would have been established but since the same were not produced, adverse inference should be drawn against the authorities, and for doing complete justice in the case, the Supreme Court directed that the Appellant should be considered for admission for the Engineering, Agriculture and Medical Courses in the State of Andhra Pradesh as she had secured 94.555% of the marks required for such admission. In case of the aforesaid cases cited by Dr. Bhattacharjee, the Court found that the authorities conducting the examination had committed some wrong or mistake on account of which the candidate taking the examination suffered some injustice and accordingly issued appropriate direction. But the present case is not a case where the Board had committed a wrong or a mistake resulting in any injustice to the Petitioner for which the Petitioner was entitled to redress by appropriate direction from the Court.

Dr. Bhattacharjee finally submitted that u/s 22 of the Act it was the Examination Committee which was required to look into the answer scripts of the candidates, but the answer scripts of the Petitioner were not placed before the Examination Committee contrary to the provisions of the said Section 22 of the Act. Dr Das, on the other hand, submitted relying on the averments made in paragraph 5 of the affidavit-in-opposition filed on behalf of the Respondent Nos. 1, 2, 3 and 4 that as per the Regulations it is not necessary to bring to the notice of the Examination Committee the answer scripts of the students and if such a course is resorted to, the results of an examination would take years to be announced.

Sections 22 and 23 of the Act are required herein below:

Committees of the Board: (1) The Board shall for the purpose of carrying out its duties and functions imposed under this Act appoint the following committees namely;

(i) Curriculum and Syllabus Committee

(ii) Examination Committee

(iii) Physical Education Committee

(iv) Girls'' Education Committee and

(v)Such other committee as may be found necessary.

(2) Every such committee shall consist of such members of the board and of such others as the board may appoint.

(3) Every such committee except the examination committee may co-opt persons to the member of the extent of one third of the members appointed to it.

(4) Members of such committee shall hold office for such time as the board may determine.

(5) Subject to the provisions of this Act and the rules made thereunder the duties and function of the committee shall be determined by regulation.

Exercise of powers delegated by the Board to Committee. All matters relating to exercise of powers conferred upon the Board by this Act which are by regulations delegated to any committee appointed u/s 22 shall stand referred to that committee and the board before exercising such powers shall receive and consider the report or recommendation of the committee with respect to the matter in question.

(Emphasis supplied)

A reading of Sub-section (1) of Section 22 quoted above would show that the Board is required to appoint various committees including the Examination Committee for the purpose of carrying out its duties and functions under the Act. Sub-section (5) of the Section 22, however, states that the duties and functions of the committees shall be determined by regulation subject to the provision of the Acts and rules. Section 23 further provides that all matters relating to exercise of power conferred upon the Board by the Act which are by regulations delegated to any Committee appointed u/s 22 shall stand referred to that committee. It is thus clear that the Examination Committee can exercise only those duties and functions which are assigned or delegated to it by the Board in the regulations. Regulation 37 of the Regulations for Conduct of Examinations by the Board stating the function of the Examination Committee is quoted herein below:

Review by the Examination Committee:

As soon as the results have been tabulated the Examination Committee shall review the general trend of results and recommend to the Board "principle" for finalisation of result. As per decision of the Board on such recommendations, the Tabulators will finalise the results and prepare Result sheets for publication.

The aforesaid Regulation 37 confers on the Examination committee the function to review the general trend of results and recommend to the Board the principle for finalisation of results. The Examination Committee thus has no statutory duty to look into each and every answer script of the candidates taking the examination. The submission of Dr. Bhattacharjee, therefore, that under the Act the Examination Committee was required to look into the answer scripts of the Petitioner is misconceived.

In the result, this writ petition has no merit and is accordingly dismissed. No costs.