Subrata Talukdar, J.:— In this writ petition, the writ petitioner claims to be aggrieved by the action of the respondents/Kalyani University in not entertaining her Right to Information Act, 2005 (for short the 2005 Act) query submitted in connection with the English Papers-I and II of the Hons. Degree Course. The petitioner points out that she received 68 marks out of 200, which is 2 marks short of 70 marks necessary for being declared as having successfully qualified in the above noted papers.
2. The next grievance presented by the writ petitioner through her learned Counsel, Mr. Debasish Chattopadhyay, relates to the fact that although the University accepted her application for review of English Papers-I and II on the 17th of March, 2016 and, permitted her to appear for the Part-II examination in the month of July, 2016, which she passed by scoring 111 out of 200 marks, the Supplementary Examinations in respect of Papers I and II (supra) were held on the 7 September, 2016 and 10 September, 2016, when the petitioner was yet to obtain her review result. As a consequence the petitioner did not avail of the opportunity to appear for the Supplementary Examinations.
3. Ultimately, the review results were published on 30 September, 2016 and, upon such publication the petitioner discovered that her original Part-I marks of 68 remained unchanged.
4. The further case is made out on behalf of the petitioner in the Affidavit-in-Reply that although, after publication of review results, the petitioner attempted to submit a RTI application for receipt of the answer scripts, such RTI application was not entertained by the competent/University Authority. On the contrary, the respondent/University claimed that the petitioner knew of a communication intra-University bearing the Reference No. 445 dated 1st March, 2016 addressed by the Controller of Examinations to the Registrar, who is also the Information Officer under the 2005 Act, stating, inter alia that the last date for availing inspection of the answer scripts of BA Part-I Examination comprising the English Papers I and II has expired on 31 March, 2016.
5. Mr. Chattopadhyay, therefore, submits that with the publication of the review results in October, 2016, the petitioner being hopeful of receiving at least the 2 additional marks necessary for qualifying, did not appear for the Supplementary Examinations of September, 2016. Now, with the internal communication of the Controller of Examinations dated 1 of March, 2016 (supra) intimating the last date for application for self-inspection of the answer scripts having expired on 31 March, 2016, the petitioner has been rendered remediless.
6. Arguing on behalf of the Respondents/Kalyani University, Mr. Amitava Chaudhuri, learned Counsel submits that the University acted strictly in accordance with its regulations. The specific stand is taken by learned Counsel for the University that the petitioner did not apply at all for her answer scripts under the 2005 Act and, such submissions read with the pleadings on record do not show any contemporaneous application having been filed by the petitioner under the 2005 Act.
7. Mr. Chaudhuri submits that the Respondents-University is circumscribed to operate within the terms of its own statute including the guidelines for self-inspection of evaluated answer scripts.
8. Having heard the parties and considering the materials placed, this Court arrives the following findings:
A) That undoubtedly the petitioner as a student and examinee was required to channels of avail of the normal channels of examination which uniformly apply to all students. Such normal channels envisage that the petitioner should avail of the Supplementary Examinations in respect of English Papers I and II instead of waiting for her review results;
B) That admittedly the University is required to apply its regulations uniformly to all students irrespective of individual success or failure. Therefore, the University, not having any regulation in place prescribing the outer limit for publication of the review results keeping in mind the overall academic schedule, allowed the petitioner to appear for the Supplementary Examinations which, for her personal reasons, she chose to ignore;
C) Therefore, this Court finds reason enough in the stand taken by the University that the petitioner be expected to act like any other student connected to following the examination pattern specified by the University.
9. Now, examining the law on the point, this Court is not unmindful of the fact that the re-evaluation of answer scripts stands within the domain of experts and, in the absence of any provision for re-evaluation of answer scripts in the relevant rules, no candidate is entitled to claim such re-evaluation. In respect of re-evaluation of answer scripts it is expected that a Court cannot substitute its views for the views of the expert/examiners and even consider granting of additional marks, however minimum, in favour of candidate.
10. The law on the point elucidated above has been amply discussed in the judgement of the Hon'ble Apex Court reported in (2014) 14 SCC 523 in the case of Central Board of Secondary Education v. Khushboo Shrivastava Paragraphs 2, 7, 9 and 11 thereof read as follows:—
“2. The facts very briefly are that Respondent 1 appeared in the All India Pre-Medical/Pre-Dental Entrance Examination, 2007 conducted by the Central Board of Secondary Education (for short “the CBSE”). She submitted representation dated 7-6-2007 through her advocate to the CBSE for re-examination and retotalling of her marks in Physics, Chemistry and Biology. The CBSE informed the advocate of Respondent 1 by letter dated 2-7-2007 that there was no provision for rechecking/re-evaluation of answer sheets of the candidates. Aggrieved, Respondent 1 and others filed writ petition, CWLC No. 7631 of 2007, in the Patna High Court under Article 226 of the Constitution for directing the CBSE to conduct a re-evaluation of her answer sheets and to retotal the marks and publish the result. The CBSE filed a reply contending inter alia that under the examination bylaws pertaining to the All India Pre-Medical/Pre-Dental Entrance Examination, there was no provision for re-evaluation.
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 re-examination 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 of Maharashtra State Board of Secondary and Higher Secondary Education v. Paritosh Bhupeshkumar Sheth, Pramod Kumar Srivastava v. Bihar Public Service Commission and W.B Council of Higher Secondary Education v. Ayan Das. 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. 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.
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. This Court in Maharashtra State Board of Secondary and Higher Secondary Education v. Paritosh Bhupeshkumar Sheth has observed: (SCC pp.56-57, para 29).
“29……….. 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 grassroots 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.”
11. The Hon'ble Division Bench of this Court in 2014 (3) CHN (CAL) 648 in the case of West Bengal Council of Higher Secondary Education v. Madhurima Mukherjee held at Paragraphs 5, 6, 8, 9, 10 and 11 as follows:—
“5. In Maharashtra State Board of Secondary and Higher Secondary Education v. Parotosh Bhupeshkumar Seth, (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 competent 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 of enactment and are, therefore within the ambit of the general power to make regulations conferred under subsection (1) of section 36. In addition, these matters fall also within the scope of clauses (e) and (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 mater 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 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:
“Finally has to be the result of public examination and, in the absence of statutory provision, the Court cannot direct re-assessment/re-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 re-evaluation of answer scripts unless the rules of the concerned Board permitted such a course. The Apex Court clarified the law as follows:
“Re-evaluation of answer books is not a relief available under the RTI Act. Therefore, the question whether re-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 provisions permitting re-evaluation/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/re-evaluation 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.
11. The order under challenge does not record even prima facie satisfaction that the respondent/writ petitioner had made out a case of defect, arbitrary, incomplete or partial examination of answer scripts. Furthermore, rules did not permit reevaluation of answer scripts.”
12. However, this Court must also notice the law laid down in (2011) 8 SCC 497 in the case of Central Board of Secondary Education v. Aditya Bandopadhyay of which Paragraphs 34, 35, 36, 54 and 55 read as follows:—
“34. It is thus now well settled that a provision barring inspection or disclosure of the answer books or re-evaluation of the answer books and restricting the remedy of the candidates only to re-totalling is valid and binding on the examinee. In the case of CBSE, the provisions barring re-evaluation and inspection contained in Bye-law 61, are akin to Rule 104 considered in Maharashtra State Board of Secondary and Higher Secondary Education v. Paritosh Bhupeshkumar Sheth, (1984) 4 SCC 27. As a consequence if an examination is governed only by the rules and regulations of the examining body which bar inspection, disclosure or re-evaluation, the examinee will be entitled only for re-totalling by checking whether all the answers have been evaluated and further checking whether there is no mistake in the totalling of marks for each question and marks have been transferred correctly to the title (abstract) page. The position may however be different, if there is a superior statutory right entitling the examinee, as a citizen to seek access to the answer books, as information.
35. In these cases, the High Court has rightly denied the prayer for re-evaluation of answer books sought by the candidates in view of the bar contained in the rules and regulations of the examining bodies. It is also not a relief available under the RTI Act. Therefore, the question whether re-evaluation should be permitted or not, does not arise for our consideration. What arises for consideration is the question whether the examinee is entitled to inspect his evaluated answer books or take certified copies thereof. This right is claimed by the students, not with reference to the rules or bye-laws of examining bodies, but under the RTI Act which enables them and entitles them to have access to the answer books as “information” and inspect them and take certified copies thereof.
36. Section 22 of the RTI Act provides that the provisions of the said Act will have effect, notwithstanding anything inconsistent therewith contained in any other law for the time being in force. Therefore the provisions of the RTI Act will prevail over the provisions of the bye-laws/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 clause (e) of Section 8(1) of the RTI Act, the examining body will be 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 of this Court in Maharashtra State Board 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.
54. The right to access information does not extend beyond the period during which the examining body is expected to retain the answer books. In the case of CBSC, the answer books are required to be maintained for a period of three months and thereafter they are liable to be disposed of/destroyed. Some other examining bodies are required to keep the answer books for a period of six months. The fact that right to information is available in regard to answer books does not mean that answer books will have to be maintained for any longer period than required under the rules and regulations of the public authority. The obligation under the RTI Act is to make available or give access to existing information or information which is expected to be preserved or maintained.
55. If the rules and regulations governing the functioning of the respective public authority require preservation of the information for only a limited period, the applicant for information will be entitled to such information only if he seeks the information when it is available with the public authority. For example, with reference to answer books, if an examinee makes an application to CBSC for inspection or grant of certified copies beyond three months (or six months or such other period prescribed for preservation of the records in regard to other examining bodies) from the date of declaration of results, the application could be rejected on the ground that such information is not available. The power of the Information Commission under Section 19(8) of the RTI Act to require a public authority to take any such steps as may be necessary to secure compliance with the provision of the Act, does not include a power to direct the public authority to preserve the information, for any period longer than what is provided under the rules and regulations of the public authority.”
13. In the light of the above recorded discussion, this Court is required to notice the fact that the petitioner applied under the 2005 Act to the University on 23rd November, 2016, which is immediately following the publication of the review results in October, 2016.
14. Accordingly, although the petitioner is required to conform to the regulations framed by the University, her independent right to obtain the information by way of the answer scripts is not lost. Equally, in view of the law laid down in (2011) 8 SCC 497 (supra), this Court is conscious of the point that the University is within its rights not to retain the answer scripts beyond the period permitted by its Regulations.
15. In the backdrop of the above discussion, this Court although unable to extend any relief to the writ petitioner qua her claim to re-evaluation of the answer scripts at this stage, directs the competent University Authority to take steps within the framework of its Regulations in terms of the law laid down in (2011) 8 SCC 497 (supra).
16. WP 26116 (W) of 2016 stands accordingly disposed of.
17. Urgent photostat certified copy of this order, if applied for, be given to the learned advocate for the parties upon compliance of necessary formalities.