The Judgment of the Court was delivered by
Subrata Talukdar, J.:— The first challenge in this writ application is to the award of fractional marks to the son of the petitioner in his History paper at the West Bengal Board of Secondary Examination, also known as the Madhyamik Examination for the year 2015. The second challenge in this writ petition relates to the award of lessor marks than expected by the son of the petitioner in the Bengali paper also of the said Madhyamik Examination, 2015.
2. Mr. Anjan Bhattacharya, Ld. Counsel appearing for the writ petitioner straightaway takes this Court to the Instructions for Examiners issued by the West Bengal Board of Secondary Education (for short the Board) for the Madhyamik Examination, 2015.
3. Mr. Bhattacharya argues that the Instruction No. 7 is clear and specifies that the examiner shall not award fractional marks while correcting the answer scripts. Instruction No. 7 is in Bengali and Mr. Bhattacharya emphasises on its unambiguous nature that the examiner is required to forsake awarding of fractional marks.
4. Mr. Bhattacharya further points out that in the event the answer is found to be correct, then either the whole marks against such answer should be awarded or, no marks should be awarded.
5. Mr. Bhattacharya next takes this Court to the broadsheet of the son of the writ petitioner in the History paper which, inter alia, shows that both at Question Nos. 3 and 4 against their sub-questions the son of the petitioner was awarded fractional marks in violation of the above mentioned guidelines.
6. The second limb of Mr. Bhattacharya's argument is that in the Bengali paper the son of the petitioner, who received a total mark of 72 out of 100 ought to have received more marks connected to the answers as stated at paragraph 7 of the writ petition. Such lower marks against some of the answers in the History paper are also pleaded at paragraph 6 of the writ petition.
7. In the light of the above noted submissions, the prayer of the writ petitioner is for a direction upon the Secretary of the Board to review the answer scripts of his son in the papers History and Bengali and, consequent to such review, issue a fresh marksheet in his favour.
8. Appearing for the respondents-Board, Ms. Koyeli Bhattacharya, Ld. Counsel produces written instructions from the Head Examiners of both the History and Bengali papers. From the said written instructions it is clearly opined by both the Head Examiners that the History and Bengali answer scripts of the son of the petitioner were correctly evaluated.
9. In connection with the History answer script it has been specifically mentioned that fractional marks have been allotted on the basis of a complete assessment of the answer written by the examinee.
10. In the further opinion of the Head Examiner although fractional marks are advised to be avoided in the Instructions, the award of fractional marks is not prohibited and, such fractional marks can be allotted in the interests of a complete evaluation.
11. It is relevant to state at this point that the son of the petitioner has, in the sum total of all marks in the History paper, secured whole marks and, not fractional marks.
12. Both the examiners have also opined that the History and Bengali answer scripts of the son of the petitioner have been correctly assessed and, there is no inconsistency in such assessment.
13. Having heard the parties and considering the materials placed, this Court is first required to examine the law connected to the jurisdiction of a Writ Court to interfere in the evaluation of answer scripts which essentially belong to the domain of examiners as experts.
14. Useful reference may be made in this regard to the judgment reported in (2014) 14 SCC 523 in the matter of Central Board of Secondary Education Through Secretary, All India Pre-Medical/Pre-Dental Entrance Examination v. Khushboo Shrivastava. Paragraphs 7, 9 and 11 read as follows:—
“7. The Learned counsel for the appellants submitted that it is now well-settled in a series of decisions of this Court that in the absence of any provision in the relevant rules providing for reexamination or re-evaluation of answer sheets of a candidate in an examination, the Court cannot direct such re-examination or re-evaluation. He relied on the decisions of this Court in Maharashtra State Board of Secondary and Higher Secondary Education v. Paritosh Bhupeshkumar Sheth [(1984) 4 SCC 27], Pramod Kumar Srivastava v. Chairman, Bihar Public Service Commission, Patna [(2004) 6 SCC 714] and Secretary, W.B Council of Higher Secondary Education v. Ayan [(2007) 8 SCC 242]. He further submitted that the High Court in exercise of its power under Article 226 of the Constitution could not substitute its own evaluation of the answers of a candidate for that of the examiner and in the present case the High Court has exceeded its power of judicial review under Article 226 of the Constitution.
9. We find that a three-Judge Bench of this Court in Pramod Kumar Srivastava v. Chairman, Bihar Public Service Commission, Patna (supra) has clearly held relying on Maharashtra State Board of Secondary and Higher Secondary Education v. Paritosh Bhupeshkumar Sheth (supra) that in the absence of any provision for the re-evaluation of answers 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. Chairman, Bihar Public Service Commission, Patna (supra) was followed by another three-Judge Bench of this Court in Board of Secondary Education v. Pravas Ranjan Panda [(2004) 13 SCC 383] in which the direction of the High Court for re-evaluation of answers 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 answers books in the rules.
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 the respondent no. 1 for the two answers in exercise of powers of judicial review under Article 226 of the Constitution as these are purely academic matters. This Court in Maharashtra State Board of Secondary and Higher Secondary Education v. Paritosh Bhupeshkumar Sheth (supra) has observed:
“…. As has been repeatedly pointed out by this Court, the Court should be extremely reluctant to substitute its own views as to what is wise, prudent and proper in relation to academic matters in preference to those formulated by professional men possessing technical expertise and rich experience of actual day-to-day working of educational institutions and the departments controlling them. It will be wholly wrong for the Court to make a pedantic and purely idealistic approach to the problems of this nature, isolated from the actual realities and grass root problems involved in the working of the system and unmindful of the consequences which would emanate if a purely idealistic view as opposed to a pragmatic one were to be propounded.””
15. The issue of the jurisdiction vested in Court to direct reevaluation of answer scripts was once again considered in detail by an Hon'ble Division Bench of this Court in the judgment reported in 2014 (3) CHN (Cal) 648 in the matter of West Bengal Council of Higher Secondary Education v. Madhurima Mukherjee. In this connection reference may be made to Paragraphs 5, 6, 8, 9 and 10 which read as follows:—
“5. In Maharashtra State Board of Secondary and Higher Secondary Education v. Paritosh Bhupeshkumar Sheth, (1984) 4 SCC 27 the Apex Court held that it was the power of the Board to lay down rules for the purpose of evaluation of answer scripts in an examination.
The Apex Court held as follows:
“It was perfectly within the competence of the Board, rather it was its plaint duty, to apply its mind and decide as a matter of policy relating to the conduct of the examination as to whether disclosure and inspection of the answer books should be allowed to the candidates, whether and to what extent verification of the result should be permitted after the results have already been announced and whether any right to claim revaluation of the answer books should be recognised or provided for. All these are matters which have an intimate nexus with the objects and purposes 3 of enactment and are, therefore, within the ambit of the general power to make regulations conferred under sub-section(1) of section 36. In addition, these matters fall also within the scope of clauses (c), (f) and (g) of sub-section(2) of the said section.”
6. In rebutting the argument of the applicability of the principles of “audi alteram partem” in the matter of evaluation of marks, the Apex Court further held as follows:
“The process of evaluation of answer papers or of subsequent verification of marks under Regulation 104(3) does not attract the principles of natural justice since no decision making process which brings about adverse civil consequences to the examinees is involved. The principles of natural justice 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. These principles involved in the audi alteram partem rule cannot be extended beyond reasonable and rational limits so as to make it applicable to the “twilight zone of mere expectations”, however great they may be.”
8. In Secy., W.B Council of Higher Secondary Education v. Ayan Das, (2007) 8 SCC 242 the Apex Court reasserted the fact that the Court normally should not indulge in revaluation of answer scripts in the absence of specific 4 provisions permitting the same. The Court also held that the onus lay upon the examinee that such an exceptional case has been made out. The Apex Court held as follows:
“Finality has to be the result of public examination and, in the absence of statutory provision, the court cannot direct reassessment/r-examination of answer scripts. 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, same should be a rarity and it can only be done in exceptional cases.”
9. In Central Board of Secondary Education v. Aditya Bandopadhyay, (2011) 8 SCC 497 the Apex Court explained the ratio in Maharashtra State Board of Secondary Education (supra) in the light of the provisions of the Right to Information Act, 2005. The Apex Court held that the provisions of the said Act undoubtedly permitted inspection of the answer scripts but the provisions of the said statute did not extend to the grant of relief of reevaluation of answer scripts unless the rules of the concerned Board permitted such a course. The Apex Court clarified the law as follows:
“R-evaluation of answer books is not a relief available under the RTI Act. Therefore, the question whether r-evaluation should be permitted or not, does not arise. In the case of CBSE, the provisions barring re-evaluation and inspection contained in Bye-law 61.”
“However, in view of section 22 RTI Act the provisions of the RTI Act will prevail over the provisions of the bye-law/rules of the examining bodies in regard to examinations. As a result, unless the examining body is able to demonstrate that the answer books fall under the exempted category of information described in section 8(1)(e), RTI Act, the examining body will bound to provide access to an examinee to inspect and take copies of his evaluated answer books, even if such inspection or taking copies is barred under the rules/bye-laws of the examining body governing the examinations. Therefore, the decision in Maharashtra State Board case and the subsequent decisions following the same, will not affect or interfere with the right of the examinee seeking inspection of the answer books or taking certified copies thereof.”
10. Let us examine the factual matrix of the case in the light of the law as analyzed in the aforesaid decisions of the Supreme Court. Admittedly, there is no provision permitting reevaluation/review of answer scripts. It was the onus of the respondent/writ petitioner to show that the answer scripts were examined in an arbitrary, defective or partial manner so as to fall within the species of “exceptional cases” to permit any relief in the matter of inspection/reevaluation of answer scripts. Even the provisions of Right to Information Act do no enable an examinee to seek reevaluation of answer scripts, although inspection of the same may be availed of subject to the exception contained in section 8 of the said Act.”
16. In the backdrop of the above discussion the prayers of the petitioner cannot be acceded to. This Court is of the further view that Instruction No. 7 to the Examiners (supra) speaks of the avoidance of fractional marks but, not its prohibition. To the mind of this Court it is inconceivable that an Examiner should be fettered in the exercise of his expertise while comparatively evaluating several answer scripts.
17. In any view of the matter, the petitioner has not alleged any personal mala fides against anybody in respect of the two papers in issue in this writ petition. Unless the issue raised in a writ petition suffices to raise the conscience of the Court to remedy a palpable injustice, it would be otherwise wholly inappropriate to deny the system its legitimacy and acceptability to lakhs of students and their concerned guardians.
18. WP 27545(W) of 2015 stands accordingly dismissed.
19. There will be, however, no order as to costs.
20. Urgent certified photocopies of this judgement, if applied for, be given to the learned advocates for the parties upon compliance of all formalities.