Ashokbhai Jamnadas Samta vs State Of Gujarat
2022 Latest Caselaw 9916 Guj

     C/SCA/15150/2022                            ORDER DATED: 08/12/2022




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

             R/SPECIAL CIVIL APPLICATION NO. 15150 of 2022

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                        ASHOKBHAI JAMNADAS SAMTA

                                  Versus

                            STATE OF GUJARAT

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Appearance:
MR YOGESH G KANADE(3114) for the Petitioner(s) No. 1
MR MEET SHAH, ADVOCATE for
MR AD OZA(515) for the Respondent(s) No. 3
NOTICE SERVED BY DS for the Respondent(s) No. 1,2
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 CORAM:HONOURABLE MR. JUSTICE BHARGAV D. KARIA

                             Date : 08/12/2022

                              ORAL ORDER

1. Heard learned advocate Mr. Yogesh Kanade for the petitioner and learned advocate Mr. Meet Shah with learned advocate Mr. Oza for the respondent.

2. By way of this petition under Article 226 of the Constitution of India, the petitioner has prayed for the following reliefs:-

a. Your Lordship be pleased to issue a writ of mandamus, or a writ in the nature of certiorari, or appropriate writ, order or direction to recheck the as how evaluation and instead of checking ostensibly in the interest of justice;

aa. Your Lordship may be pleased to issue a writ

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of mandamus, or a writ in the nature of certiorari or appropriate writ order or direction to respondent 2 & 3 for HSC Answer Sheet of PHYSICS & CHEMISTRY reassessment thoroughly i.e. full recheck according to law.

b. Pass such other and further order as this Hon'ble Court thinks fit and proper in the interest of justice.

3. It is the case of the petitioner that the niece of the petitioner who had appeared in 12th Standard examination conducted in the month of March, 2022 was awarded only 20 marks out of 100 marks in Chemistry and 27 marks out of 100 marks in Physics. It is further stated in the petition that the niece of the petitioner is desirous of re-checking of her answer sheet as according to her she has performed well in the examination.

4. Learned advocate Mr. Meet Shah for learned advocate Mr. Oza submitted that the original answer sheet of the student was placed before the Court and learned advocate for the petitioner had also physically checked the answer sheet of the student personally and the same was recorded in the order dated 29.09.2022 passed by this Court.

4.1 It appears that learned advocate for the petitioner thereafter sought time to file affidavit-in-rejoinder to the affidavit-in-reply filed on behalf of the respondent No. 3.

4.2 Learned advocate Mr. Kanade for the petitioner

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submitted that the petitioner prayer for re-assessment is required to be granted as the answer sheets which are perused by him deserves to be re-assessed.

5. On the other hand Mr. Meet Shah for the respondent - Board relied upon the following averments in the affidavit-in- reply filed on behalf of the respondent No. 3.

5. It is submitted that the present petition is file by the maternal uncle of Geetaben Jayeshbhai Solanki. There are no averments made in the petition to the extent that the present petitioner is natural/biological guardian of the petitioner. Therefore, the petitioner having no locus standi in law as maternal uncle cannot file the present petition and therefore, the same is not maintainable. Furthermore, it is stated in the para no. 2.2 of the petition that Geetaben Jayeshbhai Solanki is aged 18 years and therefore, the present petition in absence of any Power of Attorney in favour of the present petitioner is not maintainable.

6. It is submitted that the respondent Board has conducted the Examination of Standard 12th (Science Stream), in March 2022 wherein 1,07,663 students have registered for the said exam and 1,06,347 have appeared. So far as Board Examination of Standard 12th (General Stream) is concerned 4,22,597 students have registered and 4,13,904 have appeared and in Board Examination of Standard 10th 9,69,077 have registered and 9,47,777 have appeared. At the time of examination of the science stream each student is given the OMR Sheet published by the Board as there is 50 marks for OMR and 50 marks for theory.

7. It is further submitted that with a view to maintain the transparency and for proper genuine

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assessment the Board is publishing provisional answer key and thereafter the Board invites the suggestions from the subject experts and with a view to see that the genuine students do not suffer, the Board refers the suggestions or recommendations to the committee of the experts consisting of senior professors and teachers of the respective subjects. Most of these experts are having vast experience of teaching and examination work in their school, college as well as, majority of them have also performed duties related to Board Examination including the setting of the question papers as well as assessment/moderation of the answer sheets. It is submitted that before finalizing the final answer key and after considering the same final key is prepared and sent to the place of central assessment for the use of examiner. Final key of the OMR always displays on the official website of the Board. That, for theory subjects, the Board provides the observation of answer sheets in main subjects of science wherein the students can see their original answer sheet in presence of the experts, so in case of any query by the students the experts can clarify the same.

8. It is further submitted that there is no provision or rule for the reassessment of the answer sheets. The Board is only providing rechecking and for the science stream as stated herein above observation (Avalokan) of the answer sheet in main subjects is available to the students. In this regard the board is issuing circular containing necessary instructions, In the instant case the notification inviting applications for observation was issued on 17.05.2022.

9. It is submitted that in the instant case, the petitioner had made an application for observation of her answer sheets of Chemistry, Physics and Biology subjects. A copy of application dated 20.05.2022 is annexed herewith and marked as Annexure-R/1. Thereafter, in pursuant to said application the petitioner was

C/SCA/15150/2022 ORDER DATED: 08/12/2022

called for the observation of answer sheets on 18.06.2022 vide communication dated 12.06.2022. A copy of the said communication dated 12.06.2022 is annexed herewith and marked as Annexure R/2. Accordingly, the petitioner was allowed to see her answer-sheets for the above-mentioned subjects. It is submitted that a separate file is prepared by the Board for those students who make applications for observation. It was categorically stated in the communication dated 12.06.2022 that there is provision of observation of answer sheets only during the physical observation process and rechecking and reassessment is not possible in any circumstances.

10. It is submitted that at the time of physical observation the expert teachers were available at the place of observation and the queries and representations of the students were satisfactorily responded by such subject experts. Furthermore, such subject experts also made the students understand that there shall not be any changes in the marks given by the examiner. The students are also permitted to represent their grievances by noting the same in the observation file however in case of petitioner no such representation much less grievance about the non-satisfaction of observation was either made in the file or reported to any officer present during the observation process. Otherwise, at the time of observation, the experts could have clarified about the query of petitioner. Thereafter, the Board has uploaded online result of the observation wherein it is informed to the petitioner that there is no change in the marks of the petitioner.

11. It is evident from the communication dated 26.06.2022 produced at annexure B by the petitioner that instead of encouraging the petitioner for hard work so as to get the good marks in the examination the petitioner has tried

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to pressurize and threatened the authorities. The Board vide communication dated 06.07.2022 (produced at Annexure-D) responded the communication dated 26.06.2022 and tried to motivate the students for hard work so as to achieve the good results and also advised for positive thinking. In fact, the Board vide letter dated 06.08.2022 informed the petitioner to remain present personally for resolving her grievance with respect to non-satisfaction of the observations of the answer sheets. A copy of communication dated 06.08.2022 is annexed herewith and marked as Annexure - R/3. However, the petitioner neither responded to such communication nor remained present on the date of hearing. A copy of Rojkam drawn on 23.08.2022 is annexed herewith and marked as Annexure R/4.

12. It is submitted that by way of this petition, the petitioner seeks reassessment of her answer sheets which is not permissible as per the examination policy of the Board. Only in following circumstances, the change in marks are permissible:

A. Where there is error in counting the total mark:

B. Where mark is erroneously not counted;

C. Where question is inadvertently left unchecked

In the instant case, upon the examination of the answer sheets of the petitioner, none of the above circumstance was found and thus, there was no change in marks.

13. It is submitted that the Division Bench of this Hon'ble Court in the case of Shivam Rajiv Shah & Ors. Versus Gujarat Higher Secondary Education Board -Through Secretary & Another, reported in GLR 2012 (5) 4435 has observed in para 25 and 26 as follows:

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"26. The role of statutory expert bodies on education and role of Courts are well defined by a simple rule. If it is a question of educational policy or an issue involving academic matter, the Courts keep their hands off. If any provision of law has to be interpreted, applied or enforced, with reference to or connection with education, courts will step in. In Dr J.P. Kulshreshtha V/s. Chancellor, Allahabad University, reported in (1980) 3 SCC 418, the Supreme Court observed:

"Judges must not rush in where even educationists fear to tread. While there is no absolute bar, it is a rule of prudence that courts should hesitate to dislodge decisions of academic bodies."

In view of the said observations also, the present

petition is not maintainable.

14. I further say that the Hon'ble Division Bench in the case of Gujarat Secondary and Higher Secondary Education Board vs. Mihir Satish Pamnani reported in 2017 (3) GLR 1889 has held that scope for interference by way of Judicial Review in academic matters are limited. The relevant para of the said Judgment is reproduced herein as under:

"15. It is also to be noted that time and again this Court and the Hon'ble Supreme Court restricted the scope of interference by way of judicial review in the matters relating to academic bodies. Such instructions/ rules must have been prepared based on the suggestions from experts in the field of education and such rules/ instructions are to be normally accepted unless such instructions are ex facie illegal or run contrary to Statutory provisions or fundamental rules. In absence of availability of any such grounds, normally this Court cannot issue any directions substituting the view of the

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experts. In that view of the matter also we are of the view that this is not a case for judicial review for grant of directions as prayed for by respondent no.1 original petitioner."

15. In view of the above I say and submit that there is no substance in the petition and the petitioner is not entitled for any of the reliefs as prayed in the petition and the petition is required to be dismissed with cost.

5.1 Relying upon the aforesaid averments it was submitted that it is the settled legal position that the re-assessment as prayed by the petitioner cannot be granted and only the petitioner can be permitted to look into the answer sheet for re-checking. It was submitted that in the aforesaid averments reliance is also placed on the decision of the Division Bench of this Court in the case of Shivam Rajiv Shah & Ors V/s Gujarat Higher Secondary Education Board - Through Secretary & Another reported in GLR 2012 (5) 4435 and in the case of Gujarat Secondary and Higher Secondary Education Board V/s Mihir Satish Pamnani reported in 2017 (3) GLR 1889 wherein this Court had held that no order for re-assessment can be passed or any judicial review of the answer sheet can be made by the Court.

6. Having heard learned advocates for the respective parties and having gone through the material on record, it appears that the prayer made by the petitioner is misconceived since as per the settled legal position the respondent No. 3 cannot be directed to have re-assessment of the answer sheet in view of the above decisions relied upon by learned advocate for the respondent - Board.

C/SCA/15150/2022 ORDER DATED: 08/12/2022

7. In view of above, the petition is dismissed. No order as to costs. Notice is discharged.

(BHARGAV D. KARIA, J) SHRIJIT PILLAI