--- 1 --- HIGH COURT OF MADHYA PRADESH : BENCH AT INDORE S.B.: HON'BLE MR. S. C. SHARMA, J WRIT PETITITION NO. 10501 / 2010 PAWAN S/O LAXMINARAYAN Vs. BOARD OF SECONDARY EDUCATION, BHOPAL * * * * * O R D E R ( 8/3/2011) The petitioner before this Court has filed this present petition for issuance of an appropriate writ, order or direction, directing the respondent Board to recheck the copy of Business Studies in respect of Higher Secondary School Certificate Examination, 2010. The contention of the petitioner is that his answer book in the subject of Business Studies has not been checked properly and the same has been checked in a negligent manner resulting in grant of less marks to the petitioner and therefore as less marks have been granted to the petitioner, the respondents be directed to conduct a revaluation in the subject of Business Studies and a cost of Rs.25,000/- be also awarded to the petitioner. Learned counsel for the petitioner has placed reliance upon a judgment delivered by this court in the case of Rajesh Kumar Vs. Board of Secondary Education, Bhopal. His --- 2 --- contention is that keeping in view the judgment delivered by this court in the aforesaid case, revaluation be ordered in the present matter in respect of Business Studies subject. A reply has been filed on behalf of respondent Board and contention of the respondent Board is that there is no provision of revaluation of answer books under the Regulation of the Board of Secondary Education and Regulation 119 provides only for verification (scrutiny) of the marks obtained by a student. The respondents have stated that there was no lethargy and negligence on the part of the respondents in checking the answer books and marks have been awarded to the petitioner as per his performance keeping in view the key answers supplied to the examiners. Learned counsel for the respondent Board has placed reliance upon a judgment delivered by a Division Bench of this Court in the case of Priyanka Pandey Vs. Secretary, Board of Secondary Education (AIR 2007 MP 235) and his contention is that no revaluation can be ordered in the peculiar facts and circumstances of the case. Learned counsel has also relied upon the judgment delivered by the apex court in the case of Himachal Pradesh Public Service Commission Vs. Mukesh Thakur and another (2010) 6 SCC 759 and his contention is that --- 3 --- this Court cannot take upon itself the task of an examiner or selection Board and examine discrepancies and inconsistencies in question papers and evaluation thereof. He has placed reliance upon para 10 and 24. He has prayed for dismissal of the writ petition. Heard learned counsel for the parties at length and perused the record and the matter is being disposed of at the motion hearing stage itself with the consent of the parties. In the present case, the petitioner before this court was awarded 51 marks out of 100 in the subject of Business Studies and his contention is that he was entitled for more marks and his answer books have not been evaluated properly. Learned counsel for the petitioner in order to demonstrate that his answer books have not been evaluated properly has drawn the attention of this court towards Page 26 and his contention is that only 2 marks have been awarded. This Court has carefully gone through the aforesaid question – answer and marks have certainly been awarded by the examiner, keeping in view the key answers and the instructions given to the examiner by the Board for evaluating the answer books. It is not a case where the petitioner has not been awarded any marks or it is also not a case --- 4 --- where the petitioner has been awarded zero marks or it is also not a case where any answer given by the petitioner has not been evaluated. The Division Bench of this Court in the case of Priyanka Pandey in para 3 and 4 has held as under : 3. Questioning the correctness of the aforesaid order, it is submitted by Mr. Anil Tiwari, learned counsel for the appellant that though there is no provision for revaluation of the answer scripts but in certain cases revaluation can be directed. He has commended us to the decision rendered by a Division Bench of this Court rendered in the case of Pranshu Indurkhya v. State of M.P. and others, AIR 2005 MP 152. In the aforesaid case, R. V. Raveendran, CJ (as his Lordship then was) after scanning the anatomy of the rule and the decisions in the field culled out the principles as under :- "7. The principles in regard to revaluation may therefore be summarised thus :- (a) A student has no right to seek revaluation of an answer script unless the rules governing the examination specifically provide the revaluation. A provision for 'scrutiny' or 'retotalling' of marks or 'rechecking the results' in the Rules does not entitle a student to seek revaluation. (b) Where the rules do not provide for revaluation, the High Court will not normally direct the production of the answer scripts for its scrutiny or order revaluation. But in rare and exceptional cases where mala fides or tampering is made out, or where injustice has been --- 5 --- caused on account of gross negligence, the Court may direct revaluation in exercise of its jurisdiction under Article 226 of the Constitution. (c) Ascertainment of mala fides and tampering depends on facts of the case and for that purpose, if necessary, the answer script may be summoned. (d) Ascertainment of "gross negligence resulting in injustice" is a more difficult exercise. A student who has consistently secured very high marks in a subject in the last few years examinations, is shown to have failed in such subject, the Court may consider it to be prima facie evidence of such negligence and call for the answer scripts. (The mere fact that a student feels that he deserved more marks or alleges negligence, cannot be ground to call for answer scripts). On securing the answer script, the Court may examine it or take the assistance of a qualified teacher to examine it. If the Court finds any gross negligence resulting in injustice which shocks its judicial conscience it may direct revaluation. (e) But change in marks on account of perceptional differences in assessment cannot be a ground for revaluation. Different examiners may evaluate the same answers differently resulting in lesser or higher marks being awarded. Revaluation is not to be ordered merely because another valuer is of the view that the marks should have been different. In traditional examinations where the purpose is to test the knowledge, grammar, logic or reasoning, the perceptions about the answers may vary from examiner to examiner. (Of course where the examination is of objective type, where the student is merely to mark --- 6 --- 'yes' or 'no', or choose one of the multiple answers, there cannot be any difference in valuation). (f) While fairness in examinations is impliedly assured by the Board, exactness in valuation in individual cases can neither be assured nor be claimed. Certain margin of human error, oversight, and perceptional difference is part of the valuation system, where thousands or lacs of answer scripts are evaluated by hundreds or thousands of evaluators. Therefore, even where the Court secures the answer script and examines it or gets it examined by an independent teachers, revaluation should not be ordered merely because there is some difference in valuation or because one or two answers have not been valued or have been wrongly valued. To repeat, mala fides tampering or gross negligence (and not small or negligible errors or perceptional changes) is a condition precedent for ordering revaluation." 4. In this context, we may refer to the decision rendered in the case of Board of Secondary Education Madhya Pradesh, Bhopal v. Rajeev Gupta, (L.P.A. No. 295/2001) decided on 26-2-2004, whereby the Division Bench has held as under :- "As a general rule, the Court has no power to order revaluating of the paper since the rules do not provide for revaluation. However, in extraordinary cases where the student is bright and where injustice has been done in the case of evaluation of the marks specially in subjects like Mathematics and Science, it is some times open to the Court to have a look at the answer sheet and compare with the model answers papers and if --- 7 --- there are gross discrepancies in awarding marks, it is always open to the Court to direct the Board to revaluate the marks." Keeping in view the judgment delivered by the Division Bench of this Court, as there are no allegation of malafides and tampering, nor there is allegation of gross negligence resulting in injustice and as the answers have been evaluated by the examiner and also keeping in view the fact that the Regulation does not provide for revaluation, the question of directing the respondents to revaluate the answer book of the petitioner in the peculiar facts and circumstances of the case does not arise. Not only this, the apex court in the case of Himachal Pradesh Public Service Commission Vs. Mukesh Thakur and another (2010) 6 SCC 759 in para 24, 25 and 26 has held as under : 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 v. Paritosh Bhupeshkumar Sheth, wherein this Court rejected the contention that in the absence of the provision for revaluation, a direction to this effect can be issued by the Court. The Court further held that even the policy decision --- 8 --- incorporated in the Rules/Regulations not providing for rechecking / verification / revaluation 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. … 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 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.” 25. This view has been approved and relied upon and reiterated by this Court in Pramod Kumar Srivastava v. Bihar Public Service Commission 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 --- 9 --- ask for revaluation of his answer book. 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 totalling 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 revaluation of answer books in the relevant rules, no candidate in an examination has got any right whatsoever to claim or ask for revaluation of his marks.” (emphasis added) A similar view has been reiterated in Muneeb-Ul-Rehman Haroon (Dr.) v. Govt. of J&K State, Board of Secondary Education v. Pravas Ranjan Panda, Board of Secondary Education v. D. Suvankar, W.B. Council of Higher Secondary Education v. Ayan Das and Sahiti v. Dr. N.T.R. University of Health Sciences. 26. Thus, the law on the subject emerges to the effect that in the absence of any provision under the statute or statutory rules / regulations, the Court should not generally direct revaluation. The apex court in the aforesaid case has held that in absence of the provision of revaluation a direction to revaluate an answer book cannot be issued by the Court. --- 10 --- Keeping in view the judgment delivered by the Division Bench of this Court as well as the judgment delivered by the apex court, this court does not find any reason to direct the respondent Board to revaluate the answer book of the petitioner. Resultantly, this petition is dismissed. No order as to cost. (S. C. SHARMA) J U D G E KR