Public Service Commission - Re-evaluation of answer scripts - in absence of any rule permitting re-evaluation of answer scripts as also in absence of any cogent material having been brought on record by the writ petitioners to show illegalities in evaluation of the answer scripts, the prayer made by the writ petitioners are devoid of any merit.
IN THE HIGH
COURT OF JUDICATURE AT PATNA
CORAM: HONOURABLE MR. JUSTICE MOHIT KUMAR SHAH
Date: 09-05-2018
Civil Writ
Jurisdiction Case No.5552 of 2018 and Connected Cases
Nehal Ahmad Vs. Bihar Public Service Commission, Patna through its
Secretary.
Appearance
:
(In CWJC No.5552 of 2018) For the Petitioner/s : Mr. Y.V. Giri, Sr. Adv. Mr. P.K.
Shai, Sr. Adv. Mr. Satyam
Shivam Sundaram, Adv. Mr. Kumar
Kaushik, Adv. Mr. Ravi
Ranjan, Adv.
For the
Respondent- State : Mr. Md. Harun Quareshi, AC to SC-01 For the BPSC : Mr.
Lalit Kiashore, Sr.Adv. (A.G.) Mr. Satyabir Bharti, Adv. Mr. Sanjay
Pandey (In CWJC No.5730 of 2018) For the Petitioner/s : Mr. Y.V. Giri, Sr. Adv. Mr. P.K.
Shai, Sr. Adv. Mr. Satyam
Shivam Sundaram, Adv. Mr. Kumar
Kaushik, Adv. Mr. Ravi
Ranjan, Adv.
For the
Respondent- State : Mr. Manoj Kumar, AC to G.P.4 For the BPSC : Mr. Lalit
Kiashore, Sr.Adv. (A.G.) Mr. Satyabir Bharti, Adv. Mr. Sanjay
Pandey
(In CWJC No.7604 of 2018) For the Petitioner/s : Mr. Y.V. Giri, Sr. Adv. Mr. P.K.
Shai, Sr. Adv. Mr. Satyam
Shivam Sundaram, Adv. Mr. Kumar
Kaushik, Adv. Mr. Ravi
Ranjan, Adv.
For the
Respondent- State : Mr. Md. Harun Quareshi, AC to SC-01 For the BPSC : Mr.
Lalit Kiashore, Sr.Adv. (A.G.) Mr. Satyabir Bharti, Adv. Mr. Sanjay
Pandey
(In CWJC No.5999 of 2018) For the Petitioner/s : Mr. Y.V. Giri, Sr. Adv. Mr. Mr.
Mustaque Alam, Adv. Mr. Humayu
Ahmad Khan, Adv.
For the
Respondent- State : Mr. Md. Harun Quareshi, AC to SC-01 For the BPSC : Mr.
Lalit Kiashore, Sr.Adv. (A.G.) Mr. Satyabir Bharti, Adv. Mr. Sanjay
Pandey
J U D G M E N T
All the aforesaid writ petitions were heard at length on 02.05.2018
and it has been agreed between the learned counsels appearing for the
respective writ petitions that all the writ petitions be disposed of by a
common judgment since the issues involved in all the writ petitions are common.
On behalf of the writ petitioners the arguments have been advanced by Shri Y.V.
Giri and Shri P.K.Shahi, Senior Advocates, assisted by the learned Advocates on
record, appearing for the petitioners as also by Shri Kumar Kaushik, Advocate.
2. The learned Advocate General has argued on behalf of the B.P.S.C.
3. For the sake of convenience, the facts of the writ petition
bearing CWJC No.5552 of 2018 (Nehal Ahmad & Ors. Vs. The Bihar
Public Service Commission & Ors.) are
being considered for the purposes of the present judgment. The BPSC has also filed
counter affidavit in the said writ petition, which has been adopted by the BPSC
in all the cases.
4. The brief facts of the case are that the Bihar Public Service
Commission (hereinafter referred to as ―the BPSC‖) published an advertisement
on 1.9.2014, inviting applications from the suitable candidates under the 56th to 59th Common Combined (Preliminary)
Competitive Examination, 2014 (hereinafter referred to as ―the Examination 2014‖).
The applications were to be submitted till 5 PM on 15.10.2014, however, the
time was extended up to 27.10.2014 till 5 PM.
5. The preliminary test was held on 15.3.2015 and the result was
published on 21.11.2015 wherein the petitioners, along with other candidates were
declared successful. The petitioners had then appeared in the Mains (written)
examination, which was held in between 8.7.2016 to 30.7.2016 and finally the
result was published on 22.2.2018 wherein the roll numbers of the petitioners
did not find place, hence the petitioners have assailed the result of the Mains
examination.
6. The learned Senior counsels appearing for the writ petitioners
have primarily argued that the petitioners have done very well in the Mains
Examination, but still they have not been declared successful and the main
reason for them not having succeeded in the Mains Examination is on account of
the irregularity committed in course of awarding marks to the petitioners as
also in the evaluation process. It has been further alleged that the evaluation
of the answer books of the Mains examination was done again and again and only then
the final result was published, hence the entire evaluation process is faulty.
The learned Senior counsels have also submitted that the respondent Commission
has not even prepared the model answer before evaluation of the answer book of
the candidates, which is against the norms of the BPSC, hence the answer books
of the petitioners/ candidates are required to be re-evaluated after preparation
of the model answer, so that uniformity can be maintained in awarding marks to
the candidates and the evaluation of the answer scripts is not left to the
mercy of the individual examiners. Shri Kumar Kaushik, Advocate has further
argued that though the Commission, in the 53rd to 55th Combined Competitive
Examination had adopted the mode of moderation in the evaluation standard but
in the present examination the same does not appear to have been done inasmuch
as the model answers were not prepared.
7. The learned Senior counsels have relied upon a judgment rendered
by the Hon’ble Apex Court in the case of Pramod Kumar Srivastava vs.
Chairman, Bihar Public Service Commission, Patna and others, reported in (2004)
6 SCC 714 to contend that in order to avoid vagaries of wide difference in
standard in awarding marks, the BPSC had followed the pattern of the Union Public
Service Commission wherein the Head Examiner with the assistance of other
examiners prepares a model answer and the same is used as a guide by all other
examiners while examining the answerbooks so that a uniform standard in
awarding marks is maintained. However, in
the present case no such model answers have been prepared. In this regard, it
would be appropriate to reproduce paragraphs 4 and 9 of the judgment rendered
by the Hon’ble Apex Court in the case of Pramod Kumar Srivastava (supra)
herein below:-
“4. In the counter-affidavit filed by the Commission before the
learned Single Judge it was pleaded that in the rules, there was only a
provision for scrutiny and there was no provision for re-evaluation of the answer-books.
The appellant had applied for scrutiny of his marks in General Science paper
which was done and no mistake had been found and the marks remained the same,
namely, 35. It was further pleaded that a centralized mode of evaluation is adopted
by the Commission wherein examiners approved and selected by the Commission are
required to examine the answer-books under the guidance of a Head Examiner. In
order to avoid vagaries of wide difference in standard in awarding marks, the
Bihar Public Service Commission follows the pattern of the Union Public Service
Commission wherein the Head Examiner with the assistance of other examiners
prepares a model answer and this is used as guidance by all other examiners
while examining the answer-books, and by this process a uniform standard in
awarding marks is maintained. It was also submitted that in absence of any
provision in the rules for re-evaluation of the answer-books, the said exercise
cannot be done and any direction for reevaluation will open a floodgate for
other candidates to come out with similar plea which will ultimately cause a
great delay in declaring the final result.
9. Even otherwise, the manner in which the learned Single Judge had
the answer-book of the appellant in General Science paper re-evaluated cannot
be justified. The answer-book was not sent directly by the Court either to the
Registrar of Patna University or to the Principal of Science College. A
photocopy of the answer-book was handed over to the Standing Counsel for Patna
University who returned the same to the Court after some time and a statement
was made to the effect that the same had been examined by two teachers of Patna
Science College. The names of the teachers were not even disclosed to the Court. The
examination in question is a competitive examination where the comparative
merit of a candidate has to be judged. It is, therefore, absolutely necessary
that a uniform standard is applied in examining the answer-books of all the candidates.
It is the specific case of the Commission that in order to achieve such an
objective, a centralized system of evaluation of answer-books is adopted
wherein different examiners examine the answer-books on the basis of model
answers prepared by the Head Examiner with the assistance of other examiners.
It was pleaded in the letters patent appeal preferred by the Commission and
which fact has not been disputed that the model answer was not supplied to the
two teachers of Patna Science College. There can be a variation of standard in
awarding marks by different examiners. The manner in which the answerbooks were
got evaluated, the marks awarded therein cannot be treated as sacrosanct and
consequently, the direction issued by the learned Single Judge to the Commission
to treat the marks of the appellant in General Science paper as 63 cannot be
justified.‖
8. The learned Senior counsels for the petitioners
have then referred to a judgment rendered by the Hon’ble Apex Court in the case
of Rajesh Kumar & Ors. vs. State of Bihar & Ors., reported in (2013)
4 SCC 690 to contend that the Court can direct for re-evaluation of the
answer scripts. The learned Senior counsels/ counsel appearing for the writ
petitioners have also relied upon the judgment reported in (2007) 3 SCC 720 (Sanjay
Singh & Anr. Vs. U.P. Public
Service Commission, Allahabad & Ors.) and
the judgment reported in (2015) 11 SCC 395 (Sujasha Mukherji vs. High Court
of Calcutta through Registrar & Ors.).
9. Per contra, the learned Advocate General, appearing for the Bihar
Public Service Commission has contended that in the preliminary test of the
examination, 2014, 28,707 candidates were declared successful whereafter the
Mains (written) examination was held in between 8.7.2016 to 30.7.2016 in which
18,016 candidates had appeared and thereafter the Mains (written) examination
result was published on 22.2.2018 declaring 1,933 candidates successful. It has
been submitted that the Commission has an almost defect free, full proof system
of conducting fair examination(s), evaluation of answer book etc. so that there
is no chance of tampering with the answer scripts of the candidates or creeping
in of any other malpractices whatsoever. The learned Advocate General has
referred to the manner and procedure of selection to be followed from the stage
of advertisement till final recommendation by referring to the Bihar Public
Service Commission Rules of Procedure, 1996. The respondent Commission has
setout the main stages of examination activities in paragraph-16 of the counter
affidavit, which are reproduced herein below:-
16. That the Bihar Public Service Commission Rules of
Procedure, 1996 provides for the manner & procedure of selection to be
followed from the stage of advertisement till final recommendation. The main
stages of examination activities which would relevant are as follows:
(i) Confidential Work
of BPSC - The
confidential work of BPSC relates to Appointment of Question Setters and
Examiners; Setting of questions, Printing & Distribution of Question Papers,
Answer books & Answer sheets.
(ii) Preparation of the panel of Question Setters
& Examiners -As
per Chapter-III, Clause (ix) of the "Rules of Procedure, 1996" the
panel of subject wise/ paper wise question setters and examiners is prepared by
the Controller of Examinations under the guidance of the Chairman.
That the Commission appoints examiners as per
the provision made in para- ix of chapter- III of its Rules of procedure, 1996.
The para- ix of chapter- III of its Rules of procedure, 1996 envisages that for
appointment as question setters, moderators and examiners for evaluation of
answer books, the Officer In-charge of Examinations shall prepare a panel of
teachers who have put in at least 10 years of service in constituent/government
college/ post graduate department or who are Readers or professors and place it
for approval before a Committee consisting of the chairman and two members
nominated by him.
In light of aforementioned provision of Rules of Procedure, 1996,
subject-wise panel of examiners are prepared from the list of teachers of different
universities/colleges of the country as given in the university handbook and college/university
directories. These subject wise panels of examiners are placed before the committee
of chairman & two members nominated by him for consideration. The panel is
finalised after the approval of the Committee.
The Commission gets the evaluation of the answer books done by the
help of examiners whose names are included in the panel, approved by the Committee.
It is also made clear that the answer books have been evaluated only by the examiners
of the particular subjects. Thus, the allegations made by the petitioners are
baseless.
(iii) Question Setting- Out of the approved panel, ordinarily
ten Question Setters in each subject/paper are requested to send manuscripts of
question paper in sealed cover to the Controller of Examination’. With the
request letter, prescribed syllabus for each subject/Paper and Question Papers of
previous examinations, as model, are also sent.
(vi) During Examination Activities- During examination activities consist
of several stages / events i.e. dispatch of the Question Booklets / Question
papers and Answer sheets / Answer Books to examination centres, ends up with
submission of used answer sheets /answer books, roll-sheet and office copy of
the admit card to centre superintendents by the invigilators.
(v) Post Examination Activities – Postexamination activities again
consist of several stages i.e. from sealing of examination materials & ends
with final result.
(vi) Evaluation of Answer Books of
Subjective Papers / Answer Sheets of Objective Papers – There are different methodologies
for Evaluation of Objective papers and subjective papers. The evaluation of
answer sheet of objective papers is done by OMR i.e. computerized machine,
whereas, the evaluation of answer books of subjective papers is done manually,
by the examiners.
(vii) Evaluation of Subjective Papers – The reports of the District
Co-ordinator, the Centre Superintendents, the Zonal Magistrates and Observers,
having been found to be normal, the answer books of subjective examination are
brought under evaluation process. The Answer Books are codified twice, with a
view to remove remotest possibility of recognition / identification of the candidate
and thereafter, answer books are evaluated by the examiners. Finally, there is reconciliation of
code and marks with the Roll No. of candidates. CCTV cameras have been recently
introduced for recording entire process of evaluation of both subjective papers
and objective papers.
(viii) First Coding of Answer Book – Firstly, the coding is done by
replacing the flap containing Roll No., Name of the candidate on the cover of
the Answer Book by pasting a pair of randomly numbered sticker at specified
places. The flap containing Roll No., Name of the candidate is then detached
and kept separately. This work is done by one set of office staff under the
supervision of senior officials deputed by the Controller of Examinations.
(ix) Second Coding of Answer Book -The Second Coding is done similarly
and the flap containing first code with second code is kept separately. In this
way the Answer Book is left with second code only and marks are awarded on the portion
of cover page having second code only.
Second coding of answer books is done by another set of staffs
under the supervision of senior officials deputed by the Controller of the
Examination.
(x) Inviting the Head Examiners and Examiners
for the Evaluation- For the evaluation of answer books, the Head Examiners and Examiners
are invited by the Controller of Examination, from the panel approved by a committee
consisting of two Members and the Chairman or by the full Commission. There is
one Head Examiner for Five or less Examiners. Before the commencement of
evaluation the Head Examiners and Examiners so invited are required to submit
their Bio-Data in the prescribed Form, wherein they have, inter alia, to give a
declaration that no near relative is a candidate in the Examination concerned.
To achieve uniformity in evaluation in a paper, where there is
large number of answer books, one or more examiners/ head examiners were
appointed. Under the subject-wise Head Examiner/Head Examiners, examiners were
also appointed. It would manifest from the rules of procedure followed by the
Commission that written instructions/guidelines were issued to all such Head Examiners
and Examiners of all the subjects/papers before the commencement of evaluation.
A copy of the instructions/ guidelines with forwarding letter is issued to a
Head Examiner/Examiners. Thereafter, following steps are taken:-
(i) The
Commission arranges meeting of the Head Examiner with Examiners. They discuss
thoroughly the question paper, the appropriate answer to each and every
question and decide clear-cut standard of evaluation before undertaking the
evaluation.
(ii) The Head Examiner closely monitors the set standard of
evaluation being followed by each and every examiner while evaluating the
answer books and guides them if he finds any deviation on the part of any
examiner.
(iii) The Head Examiner examines all the answer books having above
60% marks and less than 30% marks. They are required to examine at least 15%
evaluated answer books.
(iv) In course of examining the answer books evaluated by the
Examiners, the Head Examiner either confirms the Examiner's award or revises it
upwards or downwards and indicates the required award on the answer book.
(v) All the answer books evaluated by the Examiners and examined
by the Head Examiners are scrutinized by the staff of the Commission who point
out the totaling errors, unevaluated portions etc. so that it might be rectified
by the Head Examiner or the Examiner concerned.
(vi) These marks are finally awarded to each paper of every
candidate represented by the relevant fictitious code numbers. On the basis of these
final paper-wise awards the Combined Merit List is prepared after decoding of
the relevant fictitious code numbers.
(xi) Place of Evaluation – The evaluation work is done in
evaluation halls, especially earmarked for the purpose under personal
supervision of the controller of examinations. The Chairman also takes stock of
the evaluation work regularly. Entry of any unauthorised person in the
Evaluation Halls is strictly prohibited. Only the members of staff especially
deputed by the controller of examinations to assist in the evaluation work are
permitted entry in the halls.
(xii) Discussion and Fixation of Modalities - Head Examiner/Head
Examiners/Examiners of each and every subject/ paper are supplied with the question-paper
of subject concerned. They assemble in the Examination Hall/ Halls of the Commission,
discuss in minute detail on each and every aspect of the questions in marathon
sessions with the examiners and decide the modalities and criteria regarding
giving / awarding marks to each and every answer to the questions and parts thereof.
(xiii) Checking by Head Examiners -After the modalities and criteria
are fixed, the answer books are provided to the examiners for evaluation. The Head
Examiners are required to check at least 15% of the evaluated answer books.
They usually check as many evaluated answer books as desirable in excess of
15%. They are also instructed to make it a point to compulsorily check all the
answer books having 60% or more marks. By this method, the uniformity in
evaluation is ensured.
(xiv) Awarding of Marks- There is only the second code
number on the answer books. Each and every examiner is required to prepare an
award list in the prescribed performa, in which s/he enters the second code
number and total marks of the evaluated answer books, both in figures and words. Award List is signed both by the Examiner and the Head Examiner.
(xv) Scrutiny of Answer Books- After the evaluation of the answer
book of a subject is over, the evaluated answer books are scrutinised by a team
of Assistants of the BPSC headed & supervised by the senior officials under
the direct supervision of officer-in-charge of confidential section, deputed by
the controller of examinations. The scrutiny team mainly scrutinizes the
following points on the basis of the Question Paper:-
(vii) Whether the total
marks entered by an Examiner on the Answer Books confirm to the total of marks
given in each and every answer written by the candidates or not.
(viii) Whether each and every answer of the candidates has been
evaluated or not.
(ix) Whether marks entered on the Answer Books are correctly
entered in the Award List or not.
(x) Whether the instructions have been properly complied with by
the Examiners, Head Examiners and candidates or not.
(xi) Whether any candidate has put any sign or symbol in the
Answer Book, which reveals the identity of the candidate or not.
(xvi) Reports of Defective Answer books- The defective Answer Books are
separated and a consolidated report is prepared by the scrutiny teams, which is
placed before the controller of examinations. The Answer Books, in which cases
of violations of instructions of Examination by candidates are found, are
placed before the BPSC and if the BPSC decides to reject any answer book, further
follow up action is taken by the Controller of Examinations.
(xvii) Rectification of Mistake by Head Examiners
and Examiners - Head
Examiners and Examiners concerned are called in the BPSC to rectify the errors
in the total marks as well as in the evaluation. The rectifications made are
again checked by the scrutiny teams, which give certificate regarding proper
rectifications made.
(xviii) Entry of Second Code and total Marks
in the Computer- Second
Code and total Marks of each and every Answer Book of all the Papers are entered
in the computer from Award List. The hard copy, whereof, is checked and tallied
with the Award Lists by a team of Assistants headed by the senior officials and
the errors/ discrepancies, if any, are corrected. Accordingly, the computer
database is rectified and once again the hard copy of the corrected data is
checked as above and thus cent percent correctness of data is ensured.
(xix) Reconciling of Codes -The marks awarded are entered in the
computer on the basis of second code. The second code and first code numbers
are separately entered in the Computer and first code and roll no. are also
entered. The hard copy of these two sets of code numbers are compared and matched
with respective flaps till 100% accuracy by team of staffs & officers
deputed by the Controller of Examinations is attained. In this way three sets of
data: Second Code & Marks, Second Code & First Code and First Code and
Roll Nos. are firmed up and kept separately in the Computer and their hard copies
used for comparison work are kept under safe custody of the Controller of
Examinations.
(xx) Preserving of Data and Publication of Result
-
For the preparation of result, in the
case of subjective examination, the four sets of data kept in the Computer
memory, viz. Roll Nos., Name of the Candidates, Reservation Category etc.,
Second Codes and First Codes, First Codes and Roll Nos. and Second Codes and Awards, are merged together to get the result
candidate-wise. The merit-wise result is then computed as per the direction of
the BPSC and is brought forward before it for final decision. With the approval
of the Commission, the result of the successful candidates is published.
10. The learned Advocate General, referring to paragraph- 18 of the
counter affidavit has submitted that the respondent Commission has recently
introduced certain initiatives i.e. System of Videography has been introduced
at various stages to ensure complete transparacy. It has been further submitted
that the postexamination work relating to observation of different reports received
from the Centre Superintendents, the Zonal Magistrates etc. codification
of Answer Books/ Answer sheets, computerization of marks etc., scanning of
Answer Sheets and preparation of result, apart from storage of Answer Books/
Answer Sheets are done in the specified Space/ Rooms in the Commission office,
where CCTV cameras have been fixed. This has been done to ensure absolute transparency
in the examination oriented work.
11. The learned Advocate General has further submitted that entire
examination process, as detailed herein above, has been conducted according to
the Rules and Procedure, 1996 and every care has been taken to ensure fair
evaluation of the answer books as also achieved uniformity in the evaluation
process. The learned Advocate has contended that there is no provision of
re-evaluation in the rules, hence the prayer of the writ petitioners for
re-evaluation of their answer books cannot be acceded to. The only provision in
the Rules of the BPSC is regarding re- totaling for which the candidates can apply
within 60 days of publication of the final result by submitting I.P.O. of Rs.
5/- for each subject. The learned Advocate General has also submitted that the
writ petitioners who have not been declared successful, had taken a calculated
chance and participated in the selection process and now when they have found
themselves to be unsuccessful, they are challenging the same, which is not
permissible in law. The learned Advocate General has relied upon the case of Pramod
Kumar Srivastava vs. Chairman, Bihar Public Service Commission, Patna and
others, reported in (2004) 6 SCC 714 to contend that in the case of
BPSC itself the Hon’ble Apex Court has held that since under the relevant rules
of the Commission there is no provision entitling a candidate to have his
answer book re-evaluated, the learned Single Judge of the High Court had
clearly erred in having the answer book of the applicant re-evaluated. It would
be relevant to quote paragraph-7 and 8 of the said judgment rendered by the Hon’ble
Apex Court in the case of Pramod Kumar Srivastava (Supra) herein below:
“7. We have heard the appellant
(writ petitioner) in person and learned counsel for the respondents at
considerable length. The main question which arises for consideration is whether
the learned Single Judge was justified in directing re-evaluation of the
answer-book of the appellant in General Science paper. Under the relevant rules
of the Commission, there is no provision wherein a candidate may be entitled to
ask for re-evaluation of his answerbook. 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 totaling 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
reevaluation of answer-books in the relevant rules, no candidate in an
examination has got any right whatsoever to claim or ask for reevaluation of
his marks. This question was examined in considerable detail in Maharashtra State
Board of Secondary and Higher Secondary Education v. Paritosh Bhupeshkumar
Sheth1. In this case, the relevant rules provided for verification
(scrutiny of marks) on an application made to that effect by a candidate. Some
of the students filed writ petitions praying that they may be allowed to inspect
the answer-books and the Board be directed to conduct re-evaluation of such of
the answer-books as the petitioners may demand after inspection. The High Court
held that the rule providing for verification of marks gave an implied power to
the examinees to demand a disclosure and inspection and also to seek
reevaluation of the answer-books. The judgment of the High Court was set aside
and it was held that in absence of a specific provision conferring a right upon
an examinee to have his answer-books re-evaluated, no such direction can be issued.
There is no dispute that under the relevant rule of the Commission there is no provision
entitling a candidate to have his answer-books re-evaluated. In such a
situation, the prayer made by the appellant in the writ petition was wholly
untenable and the learned Single Judge had clearly erred in having the answer-book
of the appellant re-evaluated.
8. Adopting
such a course as was done by the learned Single Judge will give rise to
practical problems. Many candidates may like to take a chance and pray for
re-evaluation of their answer-books. Naturally, the Court will pass orders on
different dates as and when writ petitions are filed. The Commission will have to
then send the copies of individual candidates to examiners for re-evaluation
which is bound to take time. The examination conducted by the Commission being
a competitive examination, the declaration of final result will thus be unduly
delayed and the vacancies will remain unfilled for a long time. What will
happen if a candidate secures lesser marks in reevaluation? He may come forward
with a plea that the marks as originally awarded to him may be taken into
consideration. The absence of clear rules on the subject may throw many problems
and in the larger interest, they must be avoided.
12. The learned Advocate General has referred to a judgment reported
in (2007) 8 SCC 242 (Secy. W.B. Council of Higher Secondary Education
vs. Ayan Das and Ors.), to contend that in absence of statutory provision,
the Court cannot direct reassessment/ re-examination of the answer sheet. In
this regard paragraphs 9,10,11,12 and 13 of the said judgment rendered in the case
of Secy. W.B. Council of Higher Secondary Education vs. Ayan Das
and Ors. (supra) are reproduced herein below:-
9.
The permissibility of reassessment in the absence of statutory provision
has been dealt with by this Court in several cases. The first of such cases is Maharashtra
State Board of Secondary and Higher Secondary Education v. Paritosh
Bhupeshkumar Sheth1. It was observed in the
said case that finality has to be the result of public examination and, in the absence
of statutory provision, the court cannot direct reassessment/re-examination of
answer scripts.
10. The courts normally should not direct the production of answer
scripts to be inspected by the writ petitioners unless a case is made out to show
that either some question has not been evaluated or that the evaluation has
been done contrary to the norms fixed by the examining body. For example, in
certain cases examining body can provide model answers to the questions. In
such cases the examinees satisfy the court that model answer is different from what
has been adopted by the Board. Then only can the court ask for the production
of answer scripts to allow inspection of the answer scripts by the examinee. In
Kanpur University v. Samir Gupta2 it was held as follows: (SCC p.
316, paras 16-17)
―16. 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 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. 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 textbooks leave no room for doubt
that the answer given by the students is correct and the key answer is
incorrect.
17. 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 textbooks. Those textbooks
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.‖
11. Same
would be a rarity and it can only be done in exceptional cases. The principles
set out in Maharashtra Board case1 has been followed subsequently in Pramod
Kumar Srivastava v. Chairman, Bihar Public Service Commission3, Board
of Secondary Education v. Pravas Ranjan Panda4 and President,
Board of Secondary Education v. D. Suvankar5.
12. In view of the settled position in law, the orders of the learned
Single Judge and the Division Bench cannot be sustained and stand quashed.
13. In Suvankar case5 it was inter alia observed as follows:
(SCC pp. 606-07, para 5)
―5. The Board is in appeal against the cost imposed.
As observed by this Court in Maharashtra State Board of Secondary and Higher
Secondary Education v. Paritosh Bhupeshkumar Sheth1, 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 re-evaluation 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 process. 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 would 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 pragmatic one was
to be propounded. In the above premises, it is to be considered how far the
Board has assured a zero-defect system of evaluation, or a system which is
almost foolproof.‖
13. The learned Advocate General, in order to
counter the arguments advanced on behalf of the writ petitioners on the basis of
the judgment of the Hon’ble Apex Court rendered in the case of Sanjay Singh
(supra), has relied upon a judgment reported in (2016) 2 SCC 495 (Sunil
Kumar vs. BPSC and others) to contend that the Hon’ble Apex Court in the
case of BPSC itself held that the entirety of the discussion and conclusion in
the case of Sanjay Singh case (supra) was with regard to question of
suitability of the scrutiny system to an examination where the question papers
were compulsory and common to all candidates and the said judgment rendered in
the case of Sanjay Singh (supra) has been held to have not laid down any
binding principle of law or direction or even guidelines with regard to holding
of examination, evaluation of papers and declaration of result by the
Commission. It is thus submitted that the judgment rendered by the Hon’ble
Supreme Court in the case of Sanjay Singh (supra) is confined to the
facts and circumstances of the said case and is not a binding precedent. In
this regard it would be relevant to quote paragraphs 19, 20, 21 and 22 of the
judgment rendered in the case of Sunil Kumar (Supra) herein below:-
“19. The entirety of the discussion and conclusions in Sanjay Singh3
was with regard to the question of the suitability of the scaling system to an
examination where the question papers were compulsory and common to all
candidates. The deficiencies and shortcomings of the scaling method as pointed
out and extracted above were in the above context. But did Sanjay Singh3
lay down any binding and inflexible requirement of law with regard to adoption of
the scaling method to an examination where the candidates are tested in different
subjects as in the present examination? Having regard to the context in which
the conclusions were reached and opinions were expressed by the Court it is
difficult to understand as to how this Court in Sanjay Singh3 could be
understood to have laid down any binding principle of law or directions or even
guidelines with regard to holding of examinations; evaluation of papers and
declaration of results by the Commission. What was held, in our view, was that
scaling is a method which was generally unsuitable to be adopted for evaluation
of answer papers of subjects common to all candidates and that the application
of the said method to the examination in question had resulted in unacceptable
results. Sanjay Singh3 did not decide that to such an examination i.e. where the
papers are common the system of moderation must be applied and to an examination
where the papers/subjects are different, scaling is the only available option.
We are unable to find any declaration of law or precedent or principle in Sanjay
Singh3 to the above effect as has been canvassed before us on behalf of the
appellants. The decision, therefore, has to be understood to be confined to the
facts of the case, rendered upon a consideration of the relevant Service Rules
prescribing a particular syllabus.
20. We cannot understand the law to be imposing the requirement of
adoption of moderation to a particular kind of examination and scaling to
others. Both are, at best, opinions, exercise of which requires an in-depth
consideration of questions that are more suitable for the experts in the field. Holding of
public examinations involving wide and varied subjects/disciplines is a complex
task which defies an instant solution by adoption of any singular process or by
a straitjacket formula. Not only examiner variations and variation in award of
marks in different subjects are issues to be answered, there are several other questions
that also may require to be dealt with. Variation in the strictness of the questions
set in a multi-disciplinary examination format is one such fine issue that was
coincidentally noticed in Sanjay Singh3. A conscious choice of a
discipline or a subject by a candidate at the time of his entry to the
University thereby restricting his choice of papers in a public examination;
the standards of inter-subject evaluation of answer papers and issuance of
appropriate directions to evaluators in different subjects are all relevant
areas of consideration. All such questions and, may be, several others not
identified herein are required to be considered, which questions, by their very
nature should be left to the expert bodies in the field, including, the Public
Service Commissions. The fact that such bodies including the Commissions have
erred or have acted in less than a responsible manner in the past cannot be a
reason for a free exercise of the judicial power which by its very nature will
have to be understood to be, normally, limited to instances of arbitrary or mala
fide exercise of power.
21. To revert, in the instant case, we have noticed that the contempt
proceedings against the Public Service Commission for violation of order dated
26-8-2011 in 53rd to 55th Combined Competitive Examination Candidates Assn. v.
State of Bihar2 had failed. We have also noticed that the Public Service
Commission made all attempts to gather relevant information from the Union Public
Service Commission and other State Public Service Commissions to find out the practice
followed in the other States. The information received was fully discussed in the
light of the particulars of the examination in question and thereafter a conscious
decision was taken by the Resolution dated 15-1-2013, details of which have
been already extracted. In the light of the above and what has been found to be
the true ratio of the decision in Sanjay Singh3, we cannot hold that in
the present case the action taken by the Bihar Public Service Commission
deviates either from the directions of the High Court dated 26-8- 2011 in 53rd
to 55th Combined Competitive Examination Candidates Assn. v. State of Bihar2
or the decision of this Court in Sanjay Singh3. Also, the absence of any
plea of mala fides and the uniform application of the principles adopted by the
Commission by its Resolution dated 15-1-2013 would lead us to the conclusion
that the present would not be an appropriate case for exercise of the power of
judicial review. The absence of reasons in the aforesaid resolution, on which
much stress has been laid, by itself, cannot justify such interference when the
decision, on scrutiny, does not disclose any gross or palpable unreasonableness.
22. On the aforesaid conclusions that we have reached we have to
dismiss the appeals. We, therefore, do not consider it necessary to go into the
question as to whether it was necessary for the appellants to implead the selected
candidates as partyrespondents to the present proceedings, an issue on which
elaborate arguments have been advanced and several precedents have been cited
at the Bar. For the same reasons the weighty arguments advanced by both sides
on the power of the Court to mould the relief in a given case will have to
await consideration in a more appropriate case.‖
14. Lastly, the
learned Advocate General has relied upon a judgment reported in (2018) 2 SCC
357 to contend that the Court should not at all permit reevaluation or scrutiny
of the answer sheets of a candidate if statute, rule or regulation governing an
examination does not permit re-evaluation of an answer sheet or scrutiny of an answer
sheet. It would be relevant to reproduce paragraphs 20, 21, 22, 23, 24, 35, 26,
27, 28, 29, 30, 31, 32 and 33 of the judgment rendered by the Hon’ble Apex
Court in the case of Ranvijay Singh (Supra) herein below:
―20. Maharashtra State Board of Secondary and Higher Secondary Education
v. Paritosh Bhupeshkumar Sheth 4 is perhaps
the leading case on the subject and concerned itself with Regulation 104 of the
Maharashtra Secondary and Higher Secondary Education Boards Regulations, 1977
which reads:
―104. Verification of marks obtained by a candidate in a subject.—
(1) Any candidate who has appeared at the Higher Secondary Certificate
examination may apply to the Divisional Secretary for verification of marks in
any particular subject.
The
verification will be restricted to checking whether all the answers have been
examined and that there has been no mistake in the totalling of marks for each
question in that subject and transferring marks correctly on the first cover
page of the answer book and whether the supplements attached to the answer book
mentioned by the candidate are intact. No revaluation of the answer book or supplements
shall be done.
(2) Such an
application must be made by the candidate through the head of the junior college
which presented him for the examination, within two weeks of the declaration of
the examination results and must be accompanied by a fee of Rs 10 for each
subject.
(3) No
candidate shall claim, or be entitled to revaluation of his answers or
disclosure or inspection of the answer books or other documents as these are
treated by the Divis ional Board as most confidential.‖
21. The question before
this Court was:
Whether, under law, a candidate has a right to demand an
inspection, verification and revaluation of answer books and whether the statutory
regulations framed by the Maharashtra State Board of Secondary and Higher
Secondary Education governing the subject insofar as they categorically state
that there shall be no such right can be said to be ultra vires, unreasonable
and void.
22. This Court noted that the
Bombay High Court, while dealing with a batch of 39 writ petitions, divided
them into two groups: (i) Cases where a right of inspection of the answer
sheets was claimed; (ii) Cases where a right of inspection and re-evaluation of
answer sheets was claimed. With regard to the first group, the High Court held
the above Regulation 104(3) as unreasonable and void and directed the concerned
Board to allow inspection of the answer sheets. With regard to the second group
of cases, it was held that the above Regulation 104(1) was void, illegal and manifestly
unreasonable and therefore directed that the facility of re- evaluation should
be allowed to those examinees who had applied for it.
23. In
appeal against the decision of the High Court, it was held by this Court that
the principles of natural justice are not applicable in such cases. It was held
that:
―12….The princ iples of natural justice cannot be extended beyond
reasonable and rational limits and cannot be carried to such absurd lengths as
to make it necessary that candidates who have taken a public examination should
be allowed to participate in the process of evaluation of their performances or
to verify the correctness of the evaluation made by the examiners by themselves
conducting an inspection of the answer books and determining whether there has
been a proper and fair valuation of the answers by the examiners.‖
24. On the
validity of the Regulations, this Court held that they were not illegal or unreasonable
or ultra vires the rule making power conferred by statute. It was then said:
―16….The
Court cannot sit in judgment over the wisdom of the policy evolved by the Legislature
and the subordinate regulationmaking body. It may be a wise policy which will
fully effectuate the purpose of the enactment or it may be lacking in
effectiveness and hence calling for revision and improvement. But any drawbacks
in the policy incorporated in a rule or regulation will not render it ultra
vires and the Court cannot strike it down on the ground that, in its opinion,
it is not a wise or prudent policy, but is even a foolish one, and that it will
not really serve to effectuate the purposes of the Act. The Legislature and its
delegate are the sole repositories of the power to decide what policy should be
pursued in relation to matters covered by the Act and there is no scope for interference
by the Court unless the particular provision impugned before it can be said to suffer
from any legal infirmity, in the sense of its being wholly beyond the scope of
the regulation-making power or its being inconsistent with any of the
provisions of the parent enactment or in violation of any of the limitations
imposed by the Constitution. None of these vitiating factors are shown to exist
in the present case…..‖.
It was also
noted by this Court that:
―22...the High Court has ignored the cardinal
principle that it is not within the legitimate domain of the Court to determine
whether the purpose of a statute can be served better by adopting any policy
different from what has been laid down by the Legislature or its delegate and
to strike down as unreasonable a bye-law (assuming for the purpose of discussion
that the impugned regulation is a bye-law) merely on the ground that the policy
enunciated therein does not meet with the approval of the Court in regard to
its efficaciousness for implementation of the object and purposes of the Act.‖
25.
Upholding the validity of Regulation 104, this Court then proceeded on the
basis of the plain and simple language of the Regulation to hold that
―20….The
right of verification conferred by clause (1) is subject to the limitation
contained in the same clause that no revaluation of the answer books or
supplements shall be done and the further restriction imposed by clause (3),
prohibiting disclosure or inspection of the answer books.‖ This Court then
concluded the discussion by observing:
―29….As has been repeated ly 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 decid ing the instant case.‖
26. In Pramod Kumar Srivastava v. Chairman, Bihar Public Service
Commission 5 the question under consideration was
whether the High Court was right in directing re-evaluation of the answer book
of a candidate in the absence of any provision entitling the candidate to ask
for re-evaluation. This Court noted that there was no provision in the concerned
Rules for re-evaluation but only a provision for scrutiny of the answer book ―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.‖ This Court reiterated the conclusion in Paritosh
Bhupeshkumar Sheth that ―7…in the absence of a specific provision conferring a
right upon an examinee to have his answer-books re- evaluated, no such direction
can be issued.‖
27. The principle laid down by this Court in Paritosh
Bhupeshkumar Sheth was affirmed in Secy., W.B.
Council of Higher Secondary Education v. Ayan Das6 and it was reiterated that there must be finality attached to the
result of a public examination and in the absence of a statutory provision
re-evaluation of answer scripts cannot be permitted and that it could be done
only in exceptional cases and as a rarity. Reference
was also made to Pramod Kumar Srivastava v.
Chairman, Bihar Public Service Commission, Board of
Secondary Education v. Pravas Ranjan Panda7 and President,
Board of Secondary Education v. D. Suvankar8.
28. The facts in Central Board of Secondary Education v. Khushboo Shrivastava9 are rather interesting. The respondent was a candidate in the All
India Pre-Medical/Pre- Dental Entrance Examination, 2007 conducted by the
Central Board of Secondary Education (for short ―the CBSE‖). Soon after the
results of the examination were declared, she applied for re-evaluation of her
answer sheets. The CBSE declined her request since there was no provision for
this. She then filed a writ petition in the Patna High Court and the learned
Single Judge called for her answer sheets and on a perusal thereof and on
comparing her answers with the model or key answers concluded that she deserved
an additional two marks. The view of the learned Single Judge was upheld by the
Division Bench of the High Court.
29. In appeal, this Court set
aside the decision of the High Court and reiterating the view already expressed
by this Court from time to time and allowing the appeal of the CBSE it was
held:
―9.We find that a three-Judge Bench of this Court in Pramod Kumar Srivastava v. Bihar Public Service Commission has clearly held relying on Maharashtra
State Board of Secondary and Higher Secondary Education v. Paritosh
Bhupeshkumar Sheth that in the absence of any
provision for the re-evaluation of answer books in the relevant rules, no candidate
in an examination has any right to claim or ask for re-evaluation of his marks. The
decision in Pramod Kumar Srivastava v. Bihar Public
Service Commission was followed by another
three-Judge Bench of this Court in Board of Secondary Education v. Pravas
Ranjan Panda in which the direction of the High Court for re- evaluation of
answer books of all the examinees securing 90% or above marks was held to be
unsustainable in law because the regulations of the Board of Secondary
Education, Orissa, which conducted the examination, did not make any provision
for re- evaluation of answer books in the rules.
10. In the present case, the
bye-laws of the All India Pre-Medical/Pre-Dental Entrance Examination, 2007
conducted by the CBSE did not provide for re-examination or reevaluation of
answer sheets. Hence, the appellants could not have allowed such reexamination or
re-evaluation on the representation of Respondent 1 and accordingly rejected
the representation of Respondent 1 for re-examination/re-evaluation of her
answer sheets......
11. In our considered opinion,
neither the learned Single Judge nor the Division Bench of the High Court could
have substituted his/its own views for that of the examiners and awarded two
additional marks to Respondent 1 for the two answers in exercise of powers of judicial
review under Article 226 of the Constitution as these are purely academic matters. .....‖
30.
The law on the subject is therefore, quite clear and we only propose to
highlight a few significant conclusions. They are:
30.1 If a statute, Rule or
Regulation governing an examination permits the re-evaluation of an answer
sheet or scrutiny of an answer sheet as a matter of right, then the authority
conducting the examination may permit it;
30.2 If a statute, Rule or Regulation
governing an examination does not permit reevaluation or scrutiny of an answer
sheet (as distinct from prohibiting it) then the Court may permit re-evaluation
or scrutiny only if it is demonstrated very clearly, without any ―inferential
process of reasoning or by a process of rationalisation‖ and only in rare or exceptional
cases that a material error has been committed;
30.3 The Court should not at
all re-evaluate or scrutinize the answer sheets of a candidate – it has no
expertise in the matter and academic matters are best left to academics;
30.4
The Court should presume the correctness of the key answers and proceed on that
assumption; and
30.5 In the event of a doubt, the benefit should go to the
examination authority rather than to the candidate.
31. On our part we may add that
sympathy or compassion does not play any role in the matter of directing or not
directing reevaluation of an answer sheet. If an error is committed by the examination
authority, the complete body of candidates suffers. The entire examination
process does not deserve to be derailed only because some candidates are disappointed
or dissatisfied or perceive some injustice having been caused to them by an erroneous
question or an erroneous answer. All
candidates suffer equally, though some might suffer more but that cannot be
helped since mathematical precision is not always possible. This Court has
shown one way out of an impasse – exclude the suspect or offending question.
32. It is rather unfortunate
that despite several decisions of this Court, some of which have been discussed
above, there is interference by the Courts in the result of examinations. This places
the examination authorities in an unenviable position where they are under scrutiny
and not the candidates. Additionally, a massive and sometimes prolonged examination
exercise concludes with an air of uncertainty. While there is no doubt that candidates
put in a tremendous effort in preparing for an examination, it must not be forgotten
that even the examination authorities put in equally great efforts to
successfully conduct an examination. The enormity of the task might reveal some
lapse at a later stage, but the Court must consider the internal checks and
balances put in place by the examination authorities before interfering with
the efforts put in by the candidates who have successfully participated in the
examination and the examination authorities. The present appeals are a classic
example of the consequence of such interference where there is no finality to the
result of the examinations even after a lapse of eight years. Apart from the examination
authorities even the candidates are left wondering about the certainty or otherwise
of the result of the examination – whether they have passed or not; whether
their result will be approved or disapproved by the Court; whether they will
get admission in a college or University or not; and whether they will get
recruited or not. This unsatisfactory situation does not work to anybody’s advantage
and such a state of uncertainty results in confusion being worse confounded. The overall
and larger impact of all this is that public interest suffers.
33. The facts of the case before
us indicate that in the first instance the learned Single Judge took it upon
himself to actually ascertain the correctness of the key answers to seven questions.
This was completely beyond his jurisdiction and as decided by this Court on several
occasions, the exercise carried out was impermissible. Fortunately, the
Division Bench did not repeat the error but in a sense, endorsed the view of
the learned Single Judge, by not considering the decisions of this Court but
sending four key answers for consideration by a one-man Expert Committee.‖
15.
I have heard the learned senior counsels and other learned counsels appearing for
the writ petitioners as also the learned Advocate General, appearing for the
Respondent Commission as also have gone through the materials on record. The
issues, which are required to be adjudicated in the present writ petitions,
are:-
(i) Whether re-evaluation of answer sheets can be directed by this Court
merely on the bald assertions of the writ petitioners that they had done very
well in the Mains examination, however, they surprisingly been not declared
successful, which is on account of irregularity committed in the course of
awarding marks to the writ petitioners as also on account of defective
evaluation process,
(ii) Whether this Court can direct for re-evaluation of the
answer scripts of the writ petitioners on the ground that no model answers were
prepared prior to evaluation of the answer scripts.
16. First of all, it would be relevant to state that the respondent
Commission has framed the Bihar Public Service Commission Rules of Procedure,
1996 which provides for manner and procedure of selection to be followed from
the stages of advertisement till the final recommendation. The said rules, 1996
very succinctly provides for the stages of the examination activity and the
procedure thereof, however, it has nowhere been prescribed that the evaluation
process of the answer scripts cannot be undertaken without preparing the model
answers. Nonetheless, the fact remains that the writ petitioners have not been
able to show as to what prejudice has been caused to them qua the other
successful candidates or for that matter, other unsuccessful candidates on
account of nonpreparation of the model answers. In any view of the matter, the
fact remains that the Commission has to follow the procedure laid down in the
Rules and Procedure of 1996, which has undisputedly been followed by the
Commission. Therefore, this Court finds that nonpreparation of the model
answers cannot be a ground for directing reevaluation of the answer sheets of
the writ petitioners.
17. Now, coming to the other issue regarding reevaluation of the
answer scripts of the writ petitioners on the ground of defective evaluation
system, large scale malpractices and the writ petitioners being sanguine about
their wisdom and competence to the extent that they had faired very well in the
Mains examination, but still have not been declared successful in the Mains
examination, firstly this Court, upon going through the pleadings made in the
writ petitions, finds that the writ petitioners have failed to establish much less
make out any case to the effect that there has been large scale malpractices,
irregularity in the evaluation process and the answer scripts of the writ
petitioners, have not been properly evaluated. In fact, no material has been
brought on record of the writ petitions to substantiate the bald allegations
made by the writ petitioners herein, hence this Court is not required to invoke
its extraordinary writ jurisdiction under Article 226 of the Constitution of
India merely on the pleadings of erroneous act or omission on the part of the
authority without the same having even been remotely established. Another aspect
of the matter is that the Commission has assessed the inter se merit of the
candidates and the same system of evaluation of answer sheets has been followed
for all the candidates appearing in the examination and not for any particular
candidate, hence this Court cannot take upon itself the task of a statutory
authority. In fact, a learned Division Bench of this Court in the case of Ravinder
Kumar Singh Vs. The High Court of Judicature at Patna reported in 2016(1)
PLJR 865 has held that it is not desirable to interfere with the result of
the scrutiny test on such technical pleas as raised in the present batch of the
proceedings without showing any prejudice having been caused to the writ
petitioners.
18. Secondly, it is a well settled law that in case the statutory
rule, regulation/ law does not permit re-evaluation, the Courts cannot direct
for re-evaluation of the answer scripts. The learned Advocate General has
rightly relied upon the judgments rendered by the Hon’ble Apex Court in the
case of Pramod Kumar Srivastava (supra) and Ranvijay Singh & Ors.
(Supra).
19. At this juncture, it would be relevant to mention here that the
learned senior counsels for the writ petitioners have sought to rely on the
very same judgment i.e. Pramod Kumar Srivastava (supra) to contend that
in order to avoid vagaries of wide difference in standard in awarding marks,
model answers should be prepared, which has not been done in the present case.
In this connection it must be stated that the Hon’ble Apex Court in the case of
Pramod Kumar Srivastava (supra) had deprecated the directions issued by the
learned Single Judge for re-evaluation of the answer book in absence of any
provision regarding the same in the Rules of the BPSC and the issue under
consideration was not as to whether the model answers are mandatorily required
to be prepared.
20. The latest law, on the aforesaid issue under consideration i.e. as
to whether the Courts can direct for re-evaluation of the answer scripts in
absence of any rule to that effect, has been authoritatively laid down by the
Hon’ble Apex Court recently in a judgment dated 16.2.2018 rendered in the case
of Tanya Mallick vs. The
Registrar General of the High Court of Delhi [Writ
Petition (Civil) No. 764 of 2017] and other analogous cases. In this regard it would
be appropriate to reproduce paragraph-15 of the said judgment rendered by the
Hon’ble Apex Court in the case of Tanya Mallick (supra) herein below:-
15. Now we take up the second submission with respect to
revaluation of answer scripts. It is settled proposition of law that in the
absence of provision it cannot be ordered. In Himachal Pradesh Public
ServiceCommission v. Mukesh Thakur & Anr. (2010) 6 SCC 759, this Court
has considered various decisions and observed:
―24. The issue of revaluation of
answer book is no more res integra.This issue was considered at length by this
Court in Maharashtra State Board of Secondary and Higher Secondary Education and
Anr. v. Paritosh Bhupesh Kurmar sheth wherein this Court rejected the
contention that in absence of provision for re-evaluation, a direction to this
effect can be issued by the Court. The Court further held that even the policy
decision incorporated in the Rules/Regulations not providing for rechecking/verification/reevaluation
cannot be challenged unless there are grounds to show that the policy itself is
in violation of some statutory provision. The Court held as under: (SCC pp.
39-40 & 42, paras 14 & 16)
―14. ...It is exclusively within the
province of the legislature and its delegate to determine, as a matter of
policy, how the provisions of the Statute can best be implemented and what measures,
substantive as well as procedural would have to be incorporated in the rules or
regulations for the efficacious achievement of the objects and purposes of the
Act...
xxxxx
16.
...The Court cannot sit in judgment over the wisdom of the policy evolved by
the legislature and the subordinate regulation-making body. It may be a wise
policy which will fully effectuate the purpose of the enactment or it may be lacking
in effectiveness and hence calling for revision and improvement. But any
draw-backs in the policy incorporated in a rule or regulation will not render
it ultra vires and the Court cannot strike it down on the ground that in its
opinion, it is not a wise or prudent policy, but is even a foolish one, and
that it will not really serve to effectuate the purposes of the Act. ‖
25. This
view has been approved and relied upon and re-iterated by this Court in Pramod
Kumar Srivastava v. Bihar Public Service Commission, (2004) 6 SCC714 observing
as under: (SCC pp. 717- 18,
para 7)
―7. ….Under the relevant rules of the Commission, there is no provision
wherein a candidate may be entitled to ask for reevaluation of his answer-book.
There is a provision for scrutiny only wherein the answerbooks 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 totaling 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 reevaluation of answer-books in the relevant rules, no candidate
in an examination has got any right whatsoever to claim or ask for
re-evaluation of his marks.‖ (emphasis added) A similar view has been
reiterated in Dr. Muneeb-Ul-Rehman
Haroon (Dr.) v. Govt. of J&K State (1984)4 SCC 24; Board of Secondary Education
v. PravasRanjan Panda (2004) 13 SCC 383; Board of Secondary Education v. D. Suvankar
(2007) 1 SCC 603; 15 W.B. Council of Higher Secondary Education v. Ayan Das (2007)8
SCC242; and Sahiti v. Dr. N.T.R. University
of Health Sciences (2009) 1 SCC 599.
26. Thus, the law on the
subject emerges to the effect that in absence of any provision under the Statute
or Statutory Rules/Regulations, the Court should not generally direct
revaluation.‖
In Mukesh Thakur (supra) it was laid down that in the
absence of provision for reevaluation it cannot be resorted to and the
observations which were made in the case of CPIL v. Registrar
General of High Court of Delhi (supra),
the decision was rendered in 2016 after the examination had already been held,
thus the provision for reevaluation could not have been introduced after the
examination had been held. In our
opinion, for examination in question in the absence of provision for
revaluation when the examination was held, it could not be resorted to.‖
21. Thus, this Court is left
with no iota of doubt that in absence of provision of re-evaluation, the same
cannot be resorted to since there is no provision of re-evaluation in the Rules
of the Commission. Hence, the said issue regarding re-evaluation of the answer
scripts is decided against the writ petitioners and in favour of the
respondents Commission.
22. Thirdly, there is an another important aspect of the matter to the
effect that the petitioners herein had appeared in the Mains Examination held
in between 8.7.2016 to 30.7.2016, but did not choose to challenge the selection
process either on the ground of non-preparation of the model answer or on the
allegations of irregularities and illegalities having been committed in
evaluation of the answer scripts, till after the publication of the Mains
result on 22.2.2018 and that too only when they found that they had not been declared
successful.
23. It is a settled law that such candidates, who have taken a
calculated chance and participated in the selection process, cannot be
permitted to challenge the said selection process after they have been declared
unsuccessful.
24. Now, coming to the judgment referred to by the Hon’ble Supreme
Court in the case of Sanjay Singh (Supra), the same has already been
distinguished herein above in the submissions made by the learned Advocate
General inasmuch as the same has been held to be not a precedent and has been
only confined to the facts of the said case, as has been held by the Hon’ble
Apex Court in the case of Sunil Kumar and others (supra).
25. The other judgment referred to i.e. (2013) 4 SCC 690 (Rajesh
Kumar and Ors. Vs. State of Bihar & Ors.), deals only with the issue of
application of erroneous ―model answer Key‖ for evaluation of answer script of
a candidate leading to erroneous results, hence the said case is not applicable
to the facts and circumstances of the present case.
26. Now, coming to the case of Sujasha Mukherji (supra) referred
to by the learned counsel for the petitioners, the same is based on the
judgment rendered in the case of Sanjay Singh (supra), which has already been
dealt with herein above, hence does not require any further.
27. In view of the well settled laws laid down by the Hon’ble Apex
Court in a catena of decisions, more particularly the law laid down in the case
of Pramod Kumar Srivastava (supra), Ayan Das and others (supra),
Ranvijay Singh and others (supra) and the latest judgment i.e. one rendered
in the case of Tanya Mallick (supra), this Court is of the opinion that
since there is no provision entitling a candidate to have an answer sheet
re-evaluated, under the Rules of the respondent Commission, this Court cannot direct
for re-evaluation of the answer scripts of the writ petitioners, especially
since the writ petitioners in the present case have failed to demonstrate very
c learly, without any ―inferential process of reason or process of rational‖
that a material error has been committed and more particularly since the writ
petitioners have failed to substantiate the charges of irregularities and
bungling in evaluation of the answer script with cogent materials apart from
bald feeble statements made in the writ petition. It must be stated here that
the entire examination process cannot be derailed only because some candidates
are disappointed or dissatisfied or perceive some injustice having been caused
to them and there must be finality attached to the result of the public
examination. In fact, the Hon’ble Apex Court has very aptly held that ―all cand
idates suffer equally, though some might suffer more but that cannot be helped
since mathematical precision is not always possible‖.
In fact, the Hon’ble Apex
Court has further held that sympathy or compassion does not play any role in
the matter directing or not directing re-evaluation of an answer sheet and if
an error is committed by the examination authority, the complete body of
candidates suffers. The Hon’ble Apex Court has deprecated the practice of the
courts directing for re-examination of the answer script especially in absence
of any rule to the said effect.
28. Having regard to the facts and circumstances of the case and for
the reasons mentioned herein above, this Court finds that in absence of any
rule permitting re-evaluation of answer scripts as also in absence of any
cogent material having been brought on record by the writ petitioners to show
illegalities in evaluation of the answer scripts, the prayer made by the writ
petitioners in all the aforesaid writ petitions are devoid of any merit and
consequently, all the aforesaid writ petitions are liable to be dismissed.
29. The aforesaid writ petitions are dismissed, however without any
order as to cost.
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