Introduction
Much has already been said about the far-reaching powers of judicial review, its scope, limitations, advantages and disadvantages, however, as is with every judgment that is set forth, those very facets are applicable in the facts of every case. The enabling provision of judicial review, gives hope and motivation to every practising advocate to showcase the law, apply it to the facts of his own case and be able to convince the judges to unsheathe their sword of judicial review and exercise their wide-ranging powers of discretion under Article 226. Discussing the same, the scope of this article is confined to the revaluation of answer sheets, and in summary limited to the aspect of, whether a paper in the discretion of a judge be sent for revaluation or not?
Analysis
a. Judgments wherein the Courts have used their powers of judicial review.
In dealing with such cases, the historical view that is taken is that the exercise of power should be limited in such instances, to not open a pandora’s box and inspire every discontented student to file a petition asking the Courts to send his paper for revaluation. However, where relief has been granted, the Courts have allowed petitions by awarding grace marks; allotted few marks to all candidates in view of horridly strict checking; but in most instances dismissed such petitions. In judgments where the Courts have acted, a singular principle that has evolved over time is the requirement of such an answer sheet being shown to be: –
i. Clearly demonstrated to be wrong
The Hon’ble Supreme court in the case titled as Kanpur University v. Sameer Gupta 1983 AIR SC 1230 held that: –
16 …… We agree that the key answer should be assumed to be correct unless it is proved to be wrong and that it should not be held to be wrong by an inferential process of reasoning or by a process of rationalisation. It must be clearly demonstrated to be wrong it must be such as no reasonable body of men well versed in the subject would regard as correct.
17.…. 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 penalise the students for not giving an answer which accords with the key answer with an answer which is demonstrated to be wrong.
ii. demonstrated very clearly, without any inferential process of reasoning or by a process of rationalisation.
Additionally, the Hon’ble Supreme Court in the case of Ranvijay v. State of Uttar Pradesh – 2018 AIR SC 52 held that depending on the facts of the case, the Court in exercise of judicial review can permit revaluation or scrutiny of answer sheet even when it is not permitted under statute, rule, regulation governing the examination incase it is demonstrated very clearly, without any “inferential process of reasoning or by a process of rationalization.” The relevant paragraphs are mentioned below: –
18. A complete hands-off or no-interference approach was neither suggested in Mukesh Thakur nor has it been suggested in any other decision of this Court – the case law developed over the years admits of interference in the results of an examination but in rare and exceptional situations and to a very limited extent.
30. The law on the subject is, therefore, quite clear and we only propose to highlight a few significant conclusions. They are: (i) If a statute, Rule or Regulation governing an examination permits the re-evaluation of an answer sheet or scrutiny of an answer sheet as a matter of right, then the authority conducting the examination may permit it; (ii) If a statute, Rule or Regulation governing an examination does not permit re-evaluation or scrutiny of an answer sheet (as distinct from prohibiting it) then the Court may permit re-evaluation or scrutiny only if it is demonstrated very clearly, without any “inferential process of reasoning or by a process of rationalisation” and only in rare or exceptional cases that a material error has been committed; (iii) The Court should not at all re-evaluate or scrutinize the answer sheets of a candidate – it has no expertise in the matter and academic matters are best left to academics; (iv) The Court should presume the correctness of the key answers and proceed on that assumption; and (v) In the event of a doubt, the benefit should go to the examination authority rather than to the candidate.
iii. When there is no dispute about correctness of answer.
Further, the Hon’ble Supreme Court in case titled as “High Court of Tripura Through the Registrar General v. Tirtha Sarathi Mukherjee & Ors. 2019 AIR SC 3070 after discussing Ranvijay (supra) held that the wide power of judicial review under Article 226 continues to be available even though there is no provision for revaluation. The relevant paragraphs are mentioned below: –
19. We have noticed the decisions of this Court. Undoubtedly, a three Judge Bench has laid down that there is no legal right to claim or ask for revaluation in the absence of any provision for revaluation. Undoubtedly, there is no provision. In fact, the High Court in the impugned judgment has also proceeded on the said basis. The first question which we would have to answer is whether despite the absence of any provision, are the courts completely denuded of power in the exercise of the jurisdiction under Article 226 of the Constitution to direct revaluation? It is true that the right to seek a writ of mandamus is based on the existence of a legal right and the corresponding duty with the answering respondent to carry out the public duty. Thus, as of right, the first respondent could not maintain either writ petition or the review petition demanding holding of revaluation.
20. The question however arises whether even if there is no legal right to demand revaluation as of right could there arise circumstances which leaves the Court in any doubt at all. A grave injustice may be occasioned to a writ applicant in certain circumstances. The case may arise where even though there is no provision for revaluation it turns out that despite giving the correct answer no marks are awarded. No doubt this must be confined to a case where there is no dispute about the correctness of the answer. Further, if there is any doubt, the doubt should be resolved in favour of the examining body rather than in favour of the candidate. The wide power under Article 226 may continue to be available even though there is no provision for revaluation in a situation where a candidate despite having given correct answer and about which there cannot be even slightest manner of doubt, he is treated as having given the wrong answer and consequently the candidate is found disentitled to any marks.
iv. Demonstrably and palpably erroneous
In Mahipal Singh v. State of Haryana 2019 2 SCT 436, question no. 117 pertaining to preliminary examination of Haryana Civil Services (Judicial Branch) examinations by holding the answer key to be demonstrably and palpably erroneous was revaluated. Relevant portion of paragraph 99 is reproduced hereunder: –
99. There is no dispute about this proposition of law that the answer key can only be interfered with when the Court finds that it is demonstrably and palpably erroneous. Out of the aforesaid so many questions, we could only find the answer key of this question No.117 to be demonstrably and palpably erroneous because the answer runs contrary to the Ordinance itself. We do not accept the explanation which is sought to be given by the learned Senior Counsel appearing on behalf of the respondents that in Bill No.247 of 2017, i.e. The Muslim Women (Protection of Rights on Marriage) Bill, 2017, introduced in the Parliament, which has ultimately turned out to be an Ordinance, Section 7 specifically recorded that notwithstanding anything contained in the Code of Criminal Procedure, 1973, an offence punishable under this Act shall be cognizable and non-bailable within the meaning of the said Code. However, the aforesaid Bill was not passed by the Parliament and eventually the Ordinance dated 19.09.2018 was notified wherein a change had been made in Section 7 and the phrase “non-bailable” was deleted.
v. If for the same answer one gets higher than another
In The President Board of Secondary Education, Orissa v. D. Suvankar and another 2007 1 SCT 350, while discussing the role of an examiner; the purposes of revaluation; and whether, a body was to be constituted for revaluation, it was held that:
9. It must be ensured that the Examiners who make the valuation of answer papers are really equipped for the job. The paramount consideration in such cases is the ability of the Examiner. The Board has bounden duty to select such persons as Examiners who have the capacity, capability to make valuation and they should really equip for the job. Otherwise, the very purpose of evaluation of answer papers would be frustrated. Nothing should be left to show even an apprehension about lack of fair assessment. It is true that valuation of two persons cannot be equal on golden scales, but wide variation would affect credibility of the system of valuation. If for the same answer one candidate gets higher marks than another that would be arbitrary. As indicated above, the scope for interference in matters of valuation of answer papers is very limited. For compelling reasons and apparent infirmity in valuation, the Court step in. Care should be taken to see that the Examiners who have been appointed for a particular subject belong to the same faculty. It would be a mockery of the system of valuation of a teacher belonging to Arts stream is asked to evaluate answer papers of Science stream. It may be that a teacher had Physics. Chemistry or Biology at the Intermediate Level, but at Graduation stage he had special paper in Zoology. To ask such a teacher to evaluate Botany paper would not be proper. Similarly in the case of a teacher having Mathematics in Intermediate Level while he took his high studies in Physics, or Chemistry, or Botany at the Graduation Level, evaluation of answer paper in Mathematics by him would not be proper. May be that he has working knowledge in the subject. But the valuation should be done by an Examiner who is well equipped in the subject. That would rule out the chance of variation improper valuation. Board authorities should ensure that anomalous situations as pointed out above do not occur. Additional steps should be taken for assessing the capacity of a teacher before he is appointed as an Examiner. For this purpose, the Board may constitute a Body of Experts to interview the persons who intend to be appointed as Examiners. This process is certainly time-consuming, but it would further the ends for which the examinations are held. The Chief Examiner is supposed to act as a safety-valve in the matter of proper assessment.
vi. So obviously correct
Just short of setting a judicial precedent, the Hon’ble Supreme Court in the case of State of Orissa v. Prajanaparamita Samanta 1996 (7) SCC 106 was unable to do so because there was a delay in filing the suit and therefore, despite judging the report of the experts, this Court held that: –
“3. Subsequently, by our order dated 30-9-1993, we directed the experts of the Delhi University in the subjects of Chemistry, Botany and Zoology to give their opinion about six of the seven key answers and the stand of the students in respect of the said answers which found favour with the High Court. The experts were to indicate whether (a) the key answers or the answers which according to the students were correct, were most appropriately the correct answers, and (b) whether both or either were wholly incorrect and if so which of them. We have since received the report of the experts. From the said report, it is found that four of the answers which according to the students were correct have been certified as such by the experts whereas two of the key answers given by the Board were found to be correct. We had undertaken this exercise only to satisfy ourselves as to whether there was truth in the grievance of the students or in the stand taken by the Board that the key answers provided by them were the most correct answers. We are satisfied based on the opinion of the experts that there was much to be said in favour of the stand of the students. It may be mentioned here that we had sent only six answers for examination to the experts out of the seven as indicated in the earlier order, because we had found that the answer to the seventh question canvassed by the students was so obviously correct that it needed no examination at the hands of the experts. The report of the experts also validates the order of the High Court which had directed re-evaluation of the answer books of the examinees based on the answers suggested by it to the nine questions. In the circumstances, taking a broad view of the entire matter, we are satisfied that it cannot be said that the impugned judgment of the High Court suffered from any infirmity. We, therefore, find no merit in the grievance of the State and dismiss the State’s appeals being CA Nos. 732 and 745-54 of 1993.”
Similar arguments were made out in the case of WP No. 15534 of 2008 (Madras High Court); Manish Ujjwal v. Mahrishi Dayana and Saraswati University 2005 13 SCC 744 and Richal v. Rajasthan Public Service Commission 2018 6 SCALE 639.
b. Judgments wherein the Courts have been reluctant to use their powers of judicial review.
While on the other hand it is understandable that the Courts would be reluctant as any revaluation of an examination sheet would lead to delays and unfilled vacancies. Additionally, the Courts have highlighted that they do not deem it fit to act as statutory authorities. Therefore, Courts have not ventured into the realm of revaluation in the following judgments –
i. Delay and vacancies will remain unfilled for a long time.
In the case of Pramod Kumar Srivastava v. Chairman Bihar Public Service Commission, Patna and Ors. 2004 6 SCC 714, it was held that revaluation, if not allowed as per relevant rules, then it cannot be ordered by the Courts. The Courts attributed this to delay in the selection process and decided to not venture into such a domain. It was held that: –
“8. Adopting such a course as was done by the learned Single Judge will give rise to practical problems. Many candidates may like to take a chance and pray for re-evaluation of their answer-books. Naturally, the Court will pass orders on different dates as and when writ petitions are filed. The Commission will have to then send the copies of individual candidates to examiners for re-evaluation which is bound to take time. The examination conducted by the Commission being a competitive examination, the declaration of result will thus be unduly delayed, and the vacancies will remain unfilled for a long time. What will happen if a candidate secures lesser marks in re-evaluation? He may come forward with a plea that the marks as originally awarded to him may be taken into consideration. The absence of clear rules on the subject may throw many problems and in the larger interest, they must be avoided.”
ii. Cannot take upon itself the task of statutory authorities.
In the case of HP Public Service Commission v. Mukesh Thakur and Ors. 2010 6 SCC 759, it was held that the Court cannot take upon itself the task of statutory authorities. Relying upon Maharashtra State Board of Secondary and Higher Secondary Education & Anr. v. Paritosh Bhupesh Kurmarsheth etc., AIR 1984 SC 1543, it held that the contention that in absence of provision for re-evaluation, a direction to this effect can be issued by the Court was to be rejected. The Court further held that even the policy decision incorporated in the Rules/Regulations not providing for rechecking/verification/re-evaluation cannot be challenged unless there are grounds to show that the policy itself is in violation of some statutory provision.
Additionally, similar reasons were made out in the judgments of Pranav Verma and Ors. v. Registrar General of the High Court of Punjab & Haryana at Chandigarh and Anr. 2019 (17) SCALE 731; CPIL v Registrar General High Court of Delhi 2017 11 SCC 456
Conclusion
The first point that this paper aims to make is for all the advocates reading this paper, the following considerations shall help you while drafting a similar petition. While discussing the above mentioned cases, it is clear that the Courts are very reluctant in exercising their discretion under Article 226, however, when it is exercised, such discretion has been merited generally, on the following factual considerations – (i) the number of vacancies in the post; (ii) the number of students passing the exam; (iii) the number of students failing the exam; (iv) whether permitting revaluation would delay the process of postings; (v) whether a public interest would be served in filling up such vacancies; (vi) doubtfulness in the answer key; (vii) two demonstrably correct answers in a multiple-choice question. Therefore, it is advisable that such petitions when filed, must demonstrate the element of necessity, so that the Courts exercise their capacity of judicial review conferred upon them in Article 226 of the Constitution to order revaluation and reassessment of an answer sheet.
And secondly, for academicians reading this paper, I submit that while ascertaining whether a paper must be sent for revaluation by an expert, an Hon’ble Judge reads the question, reads the answer sheet, reads the answer of the petitioner, and judges whether it is demonstrably correct/incorrect; and in turn applies his mind on the isolated question of whether the answer deserves a revaluation? In such a process, the Court applies its mind to the very question and revaluates the answer itself. Whether or not, it results in an additional mark, is subject to the examiners and experts, but the fact that it has been remitted to an expert committee by the Court is indicative enough that an additional mark or two, is merited. This is important to note as the precedents on judicial review and reluctance in exercising discretion, should ordinarily bind the Court in the maintainability of such a matter, however, such discretion is use by a Judge, in his/her benevolence; or factual considerations; and/or an advocate’s persuasive skills.
Originally published here.
