Ms. Prachi Gupta vs The Union Of India & Ors
2010 Latest Caselaw 3211 Del

             *IN THE HIGH COURT OF DELHI AT NEW DELHI

                                               Date of decision: 12th July, 2010.

+                           W.P.(C) No.4502/2010

%

MS. PRACHI GUPTA                                              ..... Petitioner
                            Through: Mr. Francis Paul, Advocate.

                                      Versus

THE UNION OF INDIA & ORS.                                    ..... Respondents
                  Through:                Mr. Atul Nanda, CGSC with Ms.
                                          Malika Gahlot & Mr. Gaurav Gupta,
                                          Advocates for R-1.
                                          Mr. Atul Kumar, Advocate for R-2.

CORAM :-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
1.       Whether reporters of Local papers may
         be allowed to see the judgment?                     No

2.       To be referred to the reporter or not?              No

3.       Whether the judgment should be reported             No


         in the Digest?

RAJIV SAHAI ENDLAW, J.

1. The petitioner, claiming herself to be a brilliant student securing more

than 98% marks in Mathematics since Class IV, by this writ petition

impugns the result of the Class XII examination held by the respondent no.2

CBSE, failing the petitioner in the subjects of Mathematics and Economics.

The petitioner has preferred this writ petition for a direction to the

respondents to show her original answer sheets of the said subjects alleging

that the same appear to have been got substituted with those of some other

student; the petitioner also seeks the relief of re-evaluation and re-checking

by an examinee other than the one on the basis of whose checking the result

has been declared.

2. The examination Bye-Laws of the respondent no.2 CBSE and on

which terms the petitioner had appeared in the examination inter alia

provide as under:-

"61. Verification of marks obtained by a Candidate in a Subject

(i) A candidate who has appeared at an examination conducted by the Board may apply to the concerned Regional Officer of the Board for verification of marks in any particular subject. The verification will be restricted to checking whether all the answers have been evaluated and that there has been no mistake in the totalling of marks for each question in that subject and that the marks have been transferred correctly on the title page of the answer book and to the award list and whether the supplementary answer book(s) attached with the answer book mentioned by the candidate are intact. No revaluation of the answer book or supplementary answer book(s) shall be done.

(iv) No candidate shall claim, or be entitled to, revaluation of his/her answers or disclosure or inspection of the answer book(s) or other documents.

(vi) In no case the verification of marks shall be done in the presence of the candidate or anyone else on his/her behalf, nor will the answer books be shown to him/her or his/her representative.

(xii) The decision of the Chairman on the result of the verification of marks shall be final."

3. The petitioner did apply to the respondent no.2 CBSE in accordance

with the aforesaid provisions. The respondent CBSE vide its communication

dated 4th June, 2010 to the petitioner informed that no mistake had been

detected. Being not satisfied this petition was filed.

4. The counsel for the respondent no.2 CBSE appearing on advance

notice has opposed the petition. He contends that the law is now well settled,

the petitioner is not entitled to the relief claimed. In this regard, reliance is

placed on:-

i. Maharashtra State Board of Secondary and Higher

Secondary Education Vs. Paritosh Bhupeshkumar Sheth AIR

1984 SC 1543 upholding the validity of the clause prohibiting

disclosure and inspection of the answer books and as to their

confidentiality and holding that it is not within the legitimate

domain of the Court to determine whether the purpose of a

statute can be served better by adopting any Policy different

from what has been laid down by the legislature or its delegatee

and to strike down as unreasonable a Bye-Law merely on the

ground that the Policy enunciated therein does not meet with

the approval of the Court. The argument of fair play requiring

such disclosure was also rejected and it was held that if it is

found that every possible precaution has been taken and all

necessary safeguards provided to ensure that the answer books

inclusive of supplements are kept in safe custody so as to

eliminate the danger of their being tampered with and that the

evaluation is done by the examiners applying uniform standards

with checks and crosschecks at different stages and that

measures for detection of malpractice, etc. have also been

effectively adopted, it will not be correct on the part of the

Courts to strike down the provision prohibiting revaluation on

the ground that it violates the rules of fair play. Similarly, the

argument of public interest was also not accepted;

ii. Parents Forum for Meaningful Education Vs. CBSE AIR

1994 Delhi 44 where the Division Bench of this Court laid

down that the setting of the question papers in the examination

and the evaluation of the answers is the prerogative of the

examining body and it is not advisable for Court to interfere

therein. It is informed that the Supreme Court in SLP preferred

by the CBSE against the said judgment, vide order dated 5th

November, 1993 set aside the direction of the Division Bench

of this Court to the CBSE to introduce the system of

revaluation;

iii. Parents Forum for Meaningful Education Vs. CBSE being

C.W.P. No.1824/1997 decided on 19th December, 2001 where

again the Division Bench of this Court held that this Court

would not interfere with the policy decision taken by the State,

far less in relation to the Education Policy which has been

evolved by experts. It was however held that the question of re-

evaluation and the right of the student to have a look at the

answer sheets has been settled in previous litigations listed in

the said judgment. It is informed that the SLP against the said

judgment of the Division Bench of this Court was also

dismissed;

iv. Pramod Kumar Srivastava Vs. Chairman, Bihar Public

Service Commission AIR 2004 SC 4116 laying down that in

the absence of any provisions in the rules for re-evaluation of

the answer books, no candidate would have a right to seek re-

evaluation of answer books;

v. Judgment dated 6th August, 2004 of the Single Judge of this

Court in W.P.(C) No.10374/2004 titled Nirbhesh Saxena Vs.

CBSE & other writ petitions where also citing numerous

errors/irregularities, reliefs as in the present petition were

claimed but were declined;

vi. Order dated 18th July, 2006 in W.P.(C) No.10984/2006 titled

Akasksha Jain Vs. The Secretary, CBSE holding that in

exercise of extraordinary power under Article 226 in certain

given circumstances where ex facie fraud or large scale

irregularity is made out, the Court may entertain petitions with

a view to satisfy itself whether the results or the process in

given cases has been done correctly but in the absence of any

visible manageable standards it would be hazardous for the

Court to indicate to the Board to put into place a mechanism of

re-evaluation. The Court nevertheless did notice that denial of

re-evaluation was harsh;

vii. The Secretary, West Bengal Council of Higher Secondary

Education Vs. Ayan Das AIR 2007 SC 3098 laying down that

direction to produce answer paper for inspection by examinee

should not normally be passed;

viii. Order dated 10th July, 2008 of this Court in W.P.(C)

No.4645/2008 titled Rinith Anand Vs. CBSE;

ix. Order dated 8th August, 2008 of this Court in LPA No.451/2008

titled Rinith Anand Vs. CBSE dismissing the appeal against

the order of the Single Judge (supra) declining the grant of

relief of re-evaluation;

x. Order dated 1st October, 2008 of this Court in W.P.(C)

No.5575/2008 titled Nishant Deengawal Vs. CBSE;

xi. Order dated 25th May, 2010 of the Supreme Court in H.P.

Public Service Commission Vs. Mukesh Thakur laying down

that it is not permissible for High Court to examine the question

paper and answer sheets itself and reiterating the view in the

judgments aforesaid of the Apex Court.

xii. Order dated 9th June, 2010 of this Court in W.P.(C)

No.4034/2010 titled Rao Siddhant Yadav Vs. CBSE;

All to the same effect.

5. Per contra, the counsel for the petitioner relies on Sahiti Vs.

The Chancellor, Dr. N.T.R. University of Health Sciences AIR 2009 SC

879 laying down that re-evaluation of answer scripts in the absence of

specific provision is perfectly legal and permissible and if the decision of the

Educational Authority is arbitrary unreasonable, mala fide, the court has the

power to order re-evaluation.

6. The only ground urged by the petitioner for seeking re-evaluation is

her past record and her expectation of high marks and shocked at being

failed. The same in my opinion cannot form the basis for seeking the

directions sought. A mere expectation of a higher better marks/result would

not entitle the court to go contrary to the grain of the aforesaid judgments.

The Supreme Court in UOI Vs. Mohan Lal Capoor AIR 1974 SC 87 held

"it is not expedient to extend the horizon of natural justice in the audi

alteram partem rule to the twilight zone of mere expectations, however great

they might be". The petitioner has neither alleged nor shown any irregularity

in the conduct of examination or any of the Rules providing various checks

and crosschecks to maintain the identity of an examinee with the answer

sheets. There is no basis for the averment that the answer sheets have been

mixed up. If such reasons are to be accepted, there would be a spate of

petitions and the Courts would be inundated with each student wanting to

take a chance qua his/her result. The Supreme Court has already held that

there ought to be a finality to the result and specially of such an examination

in which not thousands but lakhs of students appear and which is an all India

examination.

7. In so far as the judgment cited by the counsel for the petitioner is

concerned, the same is in the context of the powers of the Examining

Authority to re-evaluate and not on the right of the student to re-evaluation.

There is no merit in the petition, the same is dismissed in limine.

No order as to costs.

RAJIV SAHAI ENDLAW (JUDGE) 12th July, 2010 pp (corrected and released on 26th July, 2010).