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CASE NO.: Appeal (civil)  4560 of 2007

PETITIONER: The Secretary, West Bengal Council of Higher Secondary Education

RESPONDENT: Ayan Das & Ors

DATE OF JUDGMENT: 28/09/2007

BENCH: Dr. ARIJIT PASAYAT & P. SATHASIVAM

JUDGMENT: J U D G M E N T

CIVIL APPEAL NO.  4560  OF 2007 (Arising out of SLP (C) No. l4258 of 2005)

Dr. ARIJIT PASAYAT, J.

1.      Leave granted.

2.      The challenge in this appeal is to the order passed by the  Division Bench of the Calcutta High Court directing re- examination of answer script of respondent No.1 in English  Paper 1. 3.      The brief facts in nut shell are as follows:

Respondent No.1 passed the Madhyamik (Secondary)  Examination conducted by the West Bengal Council of Higher  Secondary Education in 2004. Respondent No.2 is the father  of respondent No.1. As a matter of Post-Publication Scrutiny of  results of Higher Secondary Examination 2004 the marks of  respondent No.1 in Physics (Theory) Paper-II were increased by  two marks. A Writ Petition was filed by respondent No.1 for a  direction to the Council-Appellant to produce the answer  scripts of respondent No.1 in several papers. The said such  answer scripts were produced before the court pursuant to the  direction given on 21.12.2004, on respondent No.1 depositing  a sum of Rs.5,000/- with the Council. The matter was  adjourned to 27.1.2005, and opportunity was given to learned  counsel for respondent No.1 to inspect the answer scripts. On  27.1.2005, learned Single Judge directed to preserve the  answer scripts and directed to issue fresh marksheet  incorporating in English Paper-I, the additional marks which,  it transpired during the inspection, were not awarded to him  for correct answer. In terms of this direction, fresh marksheet  was issued to respondent No.1. Further supplementary  affidavit was filed by respondent No.1 in terms of liberty  granted by learned Single Judge. It appears that learned  Single Judge directed that paper, in question, be re-assessed  by another examiner. The objection of the Council- Appellant  that there is no such provision for re-examination was  overruled by learned Single Judge. The Council-Appellant  pointed out that no specific error in assessment was pointed  out by respondent No.1, though he had been granted liberty to  do so. It was pointed out that there is no provision in any  statute permitting such inspection, but in view of the direction  given by learned Single Judge, inspection was granted.

An appeal was filed by the Appellant-Council questioning

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the direction given by learned Single Judge.  The Division  Bench by the impugned order dismissed the appeal holding  that Judges themselves have looked the answer script and  were satisfied that there was scope of re-assessment.  

4.      Learned counsel for the appellant submitted that course  adopted by learned Single Judge, as affirmed by the Division  Bench, is without legal sanctity.

5.      Learned counsel for respondent No.3 - State supported  the stand of the appellant. Learned counsel for respondent  Nos. 1 and 2 submitted that they have nothing further to  submit and do not want to contest than what was noted by the  High Court.

6.      The permissibility of re-assessment 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 & Anr v.  Paritosh Bhupeshkumar Sheth & Ors. reported in (1984 (4)  SCC 27). It was observed in the said case that finality has to  be the result of public examination and, in the absence of  statutory provision, Court cannot direct re-assessment/re- examination of answer scripts.

7.      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 the court can ask the production of  answer scripts to allow inspection of the answer scripts by the  examinee. In Kanpur University and Ors. v. Samir Gupta and  Ors. (AIR 1983 SC 1230) it was held as follows:-

"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 would not be held to be  wrong by an inferential process of reasoning or  by a process of rationalization. It must be  clearly demonstrated to be wrong, that is to  say, it must be such as no reasonable body of  men well versed in the particular subject  would regard as correct. The contention of the  University is falsified in this case by a large  number of acknowledged text-books, which are  commonly read by students in U.P.  Those text  books leave no room for doubt that the answer  given by the students is correct and the key  answer is incorrect.

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

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what is contained in those text-books. Those  text books support the case of the students  fully. If this were a case of doubt, we would  have unquestionably preferred the key answer.  But if the matter is beyond the realm of doubt,  it would be unfair to penalize 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".    

8.      Same would be a rarity and it can only be done in  exceptional cases. The principles set out in Maharashtra  Board’ case (supra) has been followed subsequently in Pramod   Kumar Srivastava v. Chairman Bihar Public Service  Commission, Patna & Ors. (2004 (6) SCC 714), Board of  Secondary Education v. Pravas Ranjan Panda & Anr. (2004  (13) 714) and President, Board of Secondary Education, Orissa  and Anr. v. D. Suvankar and Anr. (2007 (1) SCC 603). 9.      In view of the settled position in law, the orders of  learned Single Judge and the Division Bench cannot be  sustained and stand quashed.  

10.     In Suvankar’s case (supra) it was inter-alia observed as  follows:

"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 and another v.  Paritosh Bhupesh Kurmarsheth. etc. (AIR  1984 SC 1543), it is in the public interest that  the results Public examinations when  published should have some finality attached  to them. If inspection, verification in the  presence of the candidates and revaluation are  to be allowed as of right, it may lead to gross  and indefinite uncertainty, particularly in  regard to the relative ranking etc. of the  candidates, besides leading to utter confusion  on account of the enormity of the labour and  time involved in the 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 end  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 were 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 fool-proof".

11.     The appeal is allowed. There will be no order as to costs.