ORISSA HIGH COURT: CUTTACK. W.P. (C) No. 9150 OF 2008 In the matter of an application under Articles 226 and 227 of the Constitution of India ------- Girish Chandra Kar …… Petitioner -Versus- Board of Secondary Education & Others …… Opp. parties For Petitioner : M/s. K.K. Swain, P.N. Mohanty For opp. parties: M/s. Gitimoy Mishra, (O.P. no.1). ------------------------------------ Date of Judgment: 12 .11.2010 ------------------------------------ PRESENT : THE HONOURABLE SHRI JUSTICE M.M. DAS M. M. Das, J. The petitioner appeared in the Annual H.S.C. Examination, 2008 conducted by the Board of Secondary Education, Orissa as a regular candidate from the Police High School, Puri Center. Upon the results being published, he found that he has secured 749 marks out of the total marks of 800 and has been placed in first division. The petitioner stated that he was a brilliant student and has earned many accolades. He has also stated that he secured very high marks in the pretest and test examinations conducted by the School and expected that he will secure much higher marks than 749 as has been awarded to him. He applied for rechecking of marks in the Second Language English (SLE), Compulsory Mathematics (CMT), Compulsory Science Papers (CSC-I & CSC-II) Social Sciences (SSC-I & SSC-II), Optional Mathematics (OMT) and Optional Science Papers (OSC-I & OSC-II). Finding that the Board of Secondary Education, Orissa in such applications in a stereo type reply to all candidates is intimating that there is no change of marks on rechecking and re-addition of marks, has approached this Court apprehending that there may be mistakes in tabulation of marks or evaluation of the additional sheets used by him in the aforementioned papers or answers not valued at all. 2. It may be noted here that the regulations of the Board of Secondary Education do not provide for reevaluation of answer sheets. A counter affidavit has been filed by the Board of Secondary Education, Orissa stating that the answer papers of the petitioner will be checked up by the committee to be constituted for rechecking such answer papers and the petitioner will be duly informed within the stipulated period regarding result of such rechecking and, therefore, the writ petition is premature and should be dismissed. 3. A rejoinder affidavit has been filed by the petitioner to the counter affidavit filed on behalf of the Board of Secondary Education, that the Board has no authority to reevaluate the answer scripts of the petitioner by a committee and in the case of Board of Secondary Education V. Pravas Ranjan Panda and another, (2004) 13 SCC 383, the Supreme Court though referred to the case of Bismaya Mohanty v. Board of Secondary Education, Orissa, (1996) I OLR 134, but set aside the order of this Court. There, this Court directed the Board to scrutinize and recheck the answer scripts of all the 2 examinees securing 90% and above marks in aggregate in H.S.C. Examination, 2003 in the manner directed in Para-11 of Bismaya Mohanty’s case and if there is any change or variance of marks, the petitioner shall be informed accordingly within a period of six weeks from the date of communication of the said order. 4. An additional affidavit has been filed by the Board stating that the land mark judgment in the case of Bhismya Mohanty (supra) has not been set aside by the apex Court, basing on which the Board adopted the policy from 1995 onwards to recheck and reevaluate the answer scripts of the top 100 candidates by a committee. The opposite party-Board of Secondary Education also mentioned the mark secured by the petitioner before rechecking and reevaluation by the committee and after such rechecking and reevaluation by the committee. Particulars of the same are mentioned below:- “Roll No. Subject Marks awarded Revised marks earlier” awarded after scrutiny of 3 Chiefs ---- ------------------------------------------------------------------------ 1 2 3 4 ----------------------------------------------------------------------------- 19TA115 FLO 91 92 SLE 83 84 TLS 100 99 CMT 99 99 CSC-I 48 48 CSC-II 46 45 SSC-I 46 45 SSC-II 46 45 OMT 99 99 OSC-I 38 38 OSC-II 36 35 Practical 20 20 _______ ______ 752 749 ” 3 From the above, it appears that during evaluation of the answer scripts of the petitioner, the petitioner was awarded with 752 marks. But after rechecking and reevaluation of answer scripts by the committee, the said mark has been reduced to 749. 5. The moot question, therefore, arises in this case is as to whether the Board of Secondary Education could have constituted the committee of three Chief Examiners and reevaluate the answer scripts of the top 100 candidates even though there is no such provision in the regulation of the Board of Secondary Education. In Bismaya Mohanty’s case, a Division Bench of this Court while noted that scope for interference in matters of evaluation of answer papers is very limited and for compelling reasons and apparent infirmity in evaluation, the Court can step in. 6. Considering the facts of the said case and observing that large number of writ petitions are filed every year alleging improper evaluation, which create an alarming situation, came to the conclusion that the Board has a bounden duty to take stock of the whole situation block the loophole. Observing thus, this Court held as follows:- “One thing which cannot be lost sight of is the marginal difference of marks which decide the placement of candidates in the merit list. We find that the Chief Examiners have been given power to carefully examine the answer scripts carrying fail marks upon 15% shortage and papers securing very high marks above 90% in Mathematics and 75% in all other subjects. To eliminate the possibility of injustice on account of marginal variation in marks, we feel that after the answer scripts and the mark-foils are received back by the Board, it shall find out the highest marks secured by a candidate. By way of 4 illustration, we may take it to be 650. Let a Committee of three Chief Examiners examine all papers of candidates securing marks 636 or above. Their papers shall be independently examined and the average of marks of three Chief Examiners shall be taken to be the marks secured by the concerned candidate. However, in case difference of marks between two Chief Examiners exceeds 5 in a paper, it shall be sent to another Chief Examiner whole opinion shall be final. In case the marks given by the fourth Examiner is less than the average of other three, the average marks shall prevail. It shall be ensured by the Board authorities that a Chief Examiner does not belong to the school to which the candidate belongs. All possible care and caution should be taken to keep the identity of the candidate and the school secret. ” There was no direction issued by this Court in Bismaya Mohanty’s case to continue the procedure and more so to re-examine and reevaluate the answer scripts of top 100 candidates of every subsequent H.S.C. Examination. Before examining as to whether the procedure directed to be adopted in Bismaya Mohanty’s case has been disapproved by the Supreme Court in the case of Board of Secondary Education (Supra), it would be opt to note that the above quoted direction issued by this Court in Bismaya Mohanty’s case is not the ratio of the said decision but was issued considering the facts of the said case. 7. This Court is, therefore, of the view that the Board of Secondary Education, Orissa could not have constituted a committee to reexamine and reevaluate the answer scripts of top 100 candidates of each H.S.C. Examination after delivery of judgment in Bismaya Mohanty’s case following the above direction issued in the said case. The Board has no authority to interpret the direction issued by this Court in Bismaya Mohanty’s case to mean that the committee should 5 reexamine and reevaluate the top 100 candidates in every H.S.C. Examination following thereafter. It would be further noted that in the case of Board of Secondary Educaiton (Supra) the Board went in appeal to the Hon’ble Apex Court against the judgment of this Court in the writ petition filed by Pravas Ranjan Panda and another (Supra), where this Court directed the Board to scrutinize and recheck the answer scripts of the examinees securing 90% and above marks in aggregate in H.S.C. Examination, 2003 in the manner directed in Para-11 of Bismaya Mohanty’s case and if there is variation of marks of the petitioner to inform the petitioner accordingly. The Hon’ble Supreme Court while quoting the direction of this Court in the said case and also quoting Paragraph-11 of the judgment in the Bismaya Mohanty’s case held as follows and allowed the appeal by setting aside the order passed by this Court. “The High Court though observed that the writ petitioner who has taken the examination is hardly a competent person to assess his own merit and on that basis claim for re-evaluation of papers, but issued the aforesaid direction in order to eliminate the possibility of injustice on account of marginal variation in marks. It is an admitted position that the regulations of the Board of Secondary Education, Orissa do not make any provision for reevaluation of answer-books of the students. The question whether in absence of any provision to that effect an examinee is entitled to ask for reevaluation of his answer books has been examined by us in Pramod Kumar Srivastava v. Chairman, Bihar Pubic Service Commission decided on 6-8.2004. It has been held therein that in absence of rules providing for reevaluation of the answer books no such direction can be issued. It has been further held that in absence of clear rules on the subject, a direction for re-evaluation of the answer-books may throw many problems and in the larger public interest such a direction must be avoided. We are, therefore, of the opinion that the impugned order of the High Court directing for re- evaluation of the answer-books of all the examinees 6 securing 90% or above marks is clearly unsustainable in law and must be set aside”. 8. It can be, therefore, clearly inferred that the Hon’ble apex Court though in not so many words overruled the direction given in Bismaya Mohanty’s case but set aside the order of this Court in which direction was issued to scrutinize and recheck the answer scripts in accordance with the directions given in Para-11 of the judgment in Bismaya Mohanty’s case. It can, therefore, safely be inferred that it was concluded by the Hon’ble Apex Court that the said direction issued in Bismaya Mohanty’s case cannot be followed by the Board in the case of Pravash Ranjan Panda and another. Hence, the considered view of this Court is fortified by the aforesaid decision of the Apex Court that the directions issued in Bismaya Mohanty’s case was never meant for repeating the said principle and applying the same repeatedly in all succeeding H.S.C. Examinations and, more so, by modifying the same and making it applicable to the top 100 candidates of each examination. The action of the Board of Secondary Examination, therefore, in following such a procedure cannot be sustained. However, since no other candidates have challenged such procedure, the said procedure adopted in case of the petitioner is quashed with a direction that the Board of Secondary Education shall stop such practice of reevaluating the answer scripts of the top 100 candidates by a committee of three Chief Examiners in all future H.S.C. Examinations. Even though the petitioner has filed an affidavit claiming that he was entitled to more marks in some of the answers 7 given by him with regard to the subjects mentioned above, this Court is not inclined to enter into the same. In the result, therefore, the writ petition is partly allowed by directing the Board of Secondary Education to issue a revised mark-sheet to the petitioner awarding him the marks which were awarded to him by the examiners of the answer scripts wherein he secured a total mark of 752 thereby increasing the total marks awarded to him from ‘749’ to ‘752’. This shall be done within a period of two weeks from the date of production of certified copy of this order before the Controller of Examination, Board of Secondary Education, Orissa, Cuttack. …………………… M.M. Das, J. Orissa High Court, Cuttack. November, 12, 2010/Himansu 8 Orissa High Court,Cuttack Dated the th March,2009/Bks. 9