Orissa High Court
Kedar Sahukar vs Secretary on 11 June, 2021
W.A. No.247 OF 2021
C O R A M:
SHRI JUSTICE S. K. MISHRA
AND
MISS JUSTICE SAVITRI RATHO
______________________________________________
W.A. Nos. 247, 246, 254, 255, 257, 258, 259, 264, 265, 266
and 291 of 2021
W.A. No.247 of 2021
Kedar Sahukar ...... Appellant.
- Versus-
Secretary, Board of Secondary
Education, Odisha, Cuttack
& Ors. ...... Respondents.
For Appellant : Mr. Budhadev Routray,
Sr. Adv.,
Mr. S. Routray,
B.R. Pattanayak, J. Biswal,
A.K. Das and M. Panda.
For Respondents : Mr. S.S. Rao, Sr. Adv.
W.A. No.246 of 2021
Reena Giri ...... Appellant.
- Versus-
Secretary, Board of Secondary
Education, Odisha, Cuttack
& Ors. ...... Respondents.
For Appellant : Mr. Budhadev Routray,
Sr. Adv.,
Mr. S. Routray,
B.R. Pattanayak, J. Biswal,
A.K. Das and M. Panda.
For Respondents : Mr. S.S. Rao, Sr. Adv.
2
W.A. No.254 of 2021
Chandrakanta Behera ...... Appellant.
- Versus-
Secretary, Board of Secondary
Education, Odisha, Cuttack
& Ors. ...... Respondents.
For Appellant : Mr. Subhadutta Routray,
J. Biswal, M. Panda, B.R.
Pattanayak, S.Sekhar and
S. Routray.
For Respondents : Mr. S.S. Rao, Sr. Adv.
W.A. No.255 of 2021
Manasmini Das ...... Appellant.
- Versus-
Secretary, Board of Secondary
Education, Odisha, Cuttack
& Ors. ...... Respondents.
For Appellant : Mr. S.P. Nath, S.S. Routray,
J. Biswal, M. Panda, B.R.
Pattanayak, S. Sekhar and
A.R.Das.
For Respondents : Mr. S.S. Rao, Sr. Adv.
W.A. No.257 of 2021
Jyoti Ranjan Balabantaray ...... Appellant.
- Versus-
Secretary, Board of Secondary
Education, Odisha, Cuttack
& Ors. ...... Respondents.
For Appellant : Mr. S.P. Nath,
B.R. Pattanayak, S. Sekhar,
A.K. Das, S. Routray,
3
S.S. Routray, J. Biswal
and M. Panda.
For Respondents : Mr. S.S. Rao, Sr. Adv.
W.A. No.258 of 2021
Ratikanta Panda ...... Appellant.
- Versus-
Secretary, Board of Secondary
Education, Odisha, Cuttack
& Ors. ...... Respondents.
For Appellant : Mr. Subhadutta Routray,
J. Biswal, M. Panda, B.R.
Pattanayak, S. Sekhar and
A.K. Das.
For Respondents : Mr. S.S. Rao, Sr. Adv.
W.A. No.259 of 2021
Suchismita Nayak ...... Appellant.
- Versus-
Secretary, Board of Secondary
Education, Odisha, Cuttack
& Ors. ...... Respondents.
For Appellant : Mr. Subhadutta Routray,
S. Routray, J. Biswal,
M. Panda, B.R. Pattanayak,
S. Sekhar and A.K. Das.
For Respondents : Mr. S.S. Rao, Sr. Adv.
W.A. No.264 of 2021
Sarita Nanda ...... Appellant.
- Versus-
Secretary, Board of Secondary
Education, Odisha, Cuttack
& Ors. ...... Respondents.
4
For Appellant : Mr. Subhadutta Routray,
B.R. Pattanayak, S. Sekhar,
A.K. Das and J. Biswal.
For Respondents : Mr. S.S. Rao, Sr. Adv.
W.A. No.265 of 2021
Anita Panda ...... Appellant.
- Versus-
Secretary, Board of Secondary
Education, Odisha, Cuttack
& Ors. ...... Respondents.
For Appellant : Mr. S. P. Nath, S. Routray,
B.R. Pattanayak, S. Sekhar,
A.K. Das and J. Biswal.
For Respondents : Mr. S.S. Rao, Sr. Adv.
W.A. No.266 of 2021
Bibhudhendra Pratap Hati ...... Appellant.
- Versus-
Secretary, Board of Secondary
Education, Odisha, Cuttack
& Ors. ...... Respondents.
For Appellant : Mr. S. P. Nath,
B.R. Pattanayak, S. Sekhar,
A.K. Das, S. Routray and
J. Biswal.
For Respondents : Mr. S.S. Rao, Sr. Adv.
W.A. No.291 of 2021
Topha Tripathy ...... Appellant.
- Versus-
Secretary, Board of Secondary
Education, Odisha, Cuttack
& Ors. ...... Respondents.
5
For Appellant : Mr. Jagadish Biswal and
S.S. Routray.
For Respondents : Mr. S.S. Rao, Sr. Adv.
ORDER
03. 23.04.2021
& 11.06.2021 These matters are taken up through Video
Conferencing mode.
02. Heard Mr. B. Routray, learned Senior Advocate
appearing for all the Appellants and Mr. S.S. Rao, learned
Senior Advocate appearing for all the Respondents in all the
bunch of writ appeals.
03. These bunch of appeals have been preferred by the
unsuccessful Petitioners in a bunch of writ petitions disposed of
by the learned Single Judge vide the common judgment passed
on 04.02.2021 rejecting their prayer to correct the marks
awarded in their favour and to award marks properly and
further to declare them as pass candidates in the Odisha
Secondary School Teachers Eligibility Test (hereinafter referred
to as "the OSSTET" for brevity) Examination, 2019. They also
prayed for a direction to the Opposite Parties more particularly
the Respondent/Opposite Party No.2-Controller of
Examination, Odisha, Bhubaneswar, District- Khurda to award
more marks and grace marks to declare them as pass candidates
in OSSTET Examination, 2019.
04. The Appellants/ Petitioners claimed that they
appeared in the OSSTET Examination, 2019 and as per their
performance they should have been awarded the pass marks.
Their specific grievance is that the answers key published by
the Board of Secondary Education, Odisha, Cuttack (hereinafter
referred to as "the Board" for brevity) was wrong in certain
questions which needs to be corrected and grace marks should
be given to them. Specific instances have been cited by
different Petitioners being candidates in the aforesaid
examination.
05. The Respondents/Opposite Parties filed counter
affidavit in the lead case i.e. in W.P.(C) No.20691 of 2020
against which W.A. No.266 of 2021 has been preferred wherein
they submitted, inter alia, that the Court cannot be called upon
to assess the correctness of the answers given to the questions
nor can recall upon to compare and decide which of the answer
is correct and the scope of jurisdiction cannot be extended to
such prayers of the Petitioners. The Respondents/ Opposite
Parties further pleaded that no challenge should be allowed to
be made to the correctness of the award of marks, as the Board
has offered an effective alternative remedy to each of the
candidates. It has also been submitted that the Board soon after
the examinations, published a scoring key enabling the
candidates to challenge in the event of any objection to the
proposed answers to the questions. Upon publication of the
Notification, several candidates have raised their objections,
to different suggestive answers published in the scoring key.
All the challenges along with the materials supplied by the
candidates have been placed before the experts of the relevant
subjects and the experts have analyzed the objections and gave
their views indicating if the answer as suggested in the scoring
key is correct or not. In the cases where the challenge received
is accepted, they have also suggested so. Upon receiving the
reports from the experts in all the subjects in which objections
were received, the Board finalized the answer keys and
published the result in accordance with the same. Thus, several
questions which have been raised in the different writ petitions
were already placed before the exports and were tested before
publication of the results. The Board has taken all steps to
ensure proper award of marks.
It was further pleaded that as per the Scheme, the
answers given by the Petitioners to each questions cannot be
judged like that of answers given by the students appearing for
regular courses. Rather, the Petitioners therein were required to
be found fit to be a teacher and, therefore, the answer given
must be perfectly correct.
It was also pleaded that the challenge to the evaluation
of the answer papers cannot be called in question in the writ
jurisdiction of the High Court. Even if some difference arises
with regard to the answers by two different authors, the answer
that has been chosen by the examiner which is
unambiguously correct is to be accepted as the examiner
considering relevance and correctness of the answer accepts
one.
Since there is no provision for revaluation of the
answer books in the relevant Rules or Regulations, the
examinees have no right to claim or demand revaluation.
06. In order to substantiate their case, the Board relied
upon the reported cases of the Hon'ble Supreme Court passed
in the cases of Maharashtra State Board of Secondary and
Higher Secondary Education and another -vrs.- Paritosh
Bhupesh Kurmarsheth, etc. etc.: AIR 1984 SC 1543, Pramod
Kumar Srivastava -vrs.- Chairman, Bihar Public Service
Commission, Patna and Others: (2004) 6 SCC 714,
Himachal Pradesh Public Service Commission -vrs.-
Mukesh Thakur and Another: (2010) 6 SCC 759 and prayed
for dismissal of all the writ petitions.
07. Rejoinder has been filed by the Appellants/ Petitioners
claiming that the Respondents/ Opposite Parties have not filed
counter affidavit in proper perspective and they have resorted to
mis-representation of facts and materials in order to escape
from the wrong committed.
08. Learned Single Judge cast three issues in the aforesaid
bunch of writ petitions which are as follows:
"1. Whether in absence of any provision in the
guidelines, reevaluation is permissible?
2. Whether the Court of law by invoking Article 226
of the Constitution of India can re-assess the question
and re-appreciate the views of the Expert Committee?
3. Whether direction can be made for re-assessment
of the question paper notwithstanding the fact that
adequate precautions have been taken for rectification
of the mistake by the expert body?"
09. Deciding the issue no.1, learned Single Judge taking
into consideration the reported judgments of the Hon'ble
Supreme Court passed in the cases of Pramod Kumar
Srivastava (supra) and Ran Vijay Singh and Others -vrs.-
State of Uttar Pradesh and Others: (2018) 2 SCC 357, has
come to the conclusion that re-valuation in absence of any
provision is not permissible. Hence, the learned Single Judge
decided the issue no.1 in favour of the Board.
10. While deciding the issue nos.2 and 3, learned Single
Judge took into consideration various judgments of the Hon'ble
Supreme Court passed in the cases of Ashwini Kumar
Upadhyay -vrs. Union of India and Others: (2020) 7 SCC
693; Vikesh Kumar Gupta & Anr. vrs.- The State of
Rajasthan & Ors. (decided in Civil Appeal Nos.3649-3650 of
2020) and batch of Civil Appeals); Maharashtra State Board
of Secondary and Higher Secondary Education and another
(supra) and Himachal Pradesh Public Service Commission
(supra). While answering the issue nos.2 and 3 in favour
of the Board, learned Single Judge also relied upon the
judgment of the Hon'ble Supreme Court in the case of Richal
and Others -vrs.- Rajasthan Public Service Commission
and Others: (2018) 8 SCC 81 wherein at pargraph-19, the
Hon'ble Supreme Court held that:- "the key answers prepared by the
paper-setter or the examining body is presumed to have been prepared
after due deliberations. To err is human. There are various factors which
may lead to framing of the incorrect key answers. The publication of key
answers is a step to achieve transparency and to give an opportunity to
candidates to assess the correctness of their answers. An opportunity to
file objections against the key answers uploaded by examining body is a
step to achieve fairness and perfection in the process. xx xx xx".
Such step has also been taken in these cases while
assessing the answer sheets of the Petitioners/ candidates.
11. In pursuance to the queries and directions made by the
learned Single Judge, an affidavit was filed by the Secretary of
the Board, wherein it was categorically stated that in the
aforesaid writ petitions, there are about 69 candidates. All the
Petitioners except Sri Jayadev Lohar, the Petitioner in W.P.(C)
No.22980 of 2020, have filed their challenges in response to
Notification No.153 dated 07.02.2020, calling upon all the
candidates to raise any challenge between 08.02.2020 to
14.02.2020 in case they feel any ambiguity in any key answer
within the stipulated time and before the final scoring key was
published. Objections given by all the candidates, who have
appeared in the OSSTET, 2019, were 363 in numbers. All
the objections so received, were placed before the concerned
subject experts. On re-examination of the challenges, eight of
the challenges were accepted and rest 355 challenges were not
accepted. Further, it was submitted that challenges were placed
before the expert and after examination of the scoring keys by
the experts, the final scoring key was uploaded in the website of
the Board for examination of the candidates vide Notification
No.613 dated 01.08.2020.
Learned Single Judge also took note of the
submissions made by the Petitioners that all the Petitioners had
failed in the OSSTET examination on very small marks. In
some cases it is 1, 2 or 3 mark short less than the qualifying
mark. However, learned Single Judge referred the judgment
passed in the case of Ran Vijay Singh and Others (supra)
wherein at paragraph-31, the Hon'ble Supreme Court held that
"sympathy or compassion does not play any role in the matter of directing
or not directing re-evaluation of an answer sheet. If an error is committed
by the examination authority, the complete body of candidates suffers. The
entire examination process does not deserve to be derailed only because
some candidates are disappointed or dissatisfied or perceive some
injustice having been caused to them by an erroneous question or an
erroneous answer. All candidates suffer equally, though some might suffer
more but that cannot be helped since mathematical precision is not always
possible. This Court has shown one way out of an impasse - exclude the
suspect or offending question". Moreover, in the case of Bihar
Staff Selection Commission and Others -vrs.- Arun Kumar
and Others: (2020) 6 SCC 362, the Hon'ble Supreme Court
held that "the unilateral exercise of re-valuation undertaken by the High
Court has not solved, but rather contributed to the chaos". Therefore,
the learned Single Judge held that in absence of any guideline,
re-valuation would lead to utter confusion worst confounded.
Hence, the learned Single Judge dismissed all the writ petitions.
12. In assailing the findings of the learned Single Judge,
Mr. B. Routray, learned Senior Advocate appearing for all the
Appellants in the aforesaid bunch of appeals, would argue that
when it is accepted by the learned Single Judge that eight
challenges were accepted by the Board out of 363 challenges
and rejecting the rest 355 challenges, why this eight challenges
or 8 marks should not be given to the candidates as grace marks
or marks for wrong answers. He also cites the judgment of the
Hon'ble Supreme Court passed in the case of Guru Nanak Dev
University -vrs.- Saumil Garg and Others: (2005) 13 SCC
749 and submits that whenever it is demonstrated before the
Writ Court that the model answer or the key answer is incorrect
in view of the accepted position of law as revealed from
standard and accepted text books, the writ applications should
have been allowed and such direction will not be a re-
assessment and/ or re-valuation of the answer sheets.
13. Coming to the first contention raised by the learned
counsel for the Appellants, we have carefully examined some of
the memorandum of appeals filed by the Appellants. We have
especially examined the memorandum of appeal in W.A.
No.266 of 2021which arises out of the lead writ petition bearing
W.P.(C) No.20691 of 2020, but do not find any such specific
plea was raised by the Appellants/ Petitioners in the appeal
memo. In course of hearing also, Mr. B. Routray, learned
Senior Advocate appearing for the Petitioners does not point
out that such plea has been specifically raised either in the writ
petitions or in the appeal memos. Secondly, it is the case of the
Board that in view of the exhaustive guidelines of the National
Council for Teacher Education (NCTE) and as per the
provisions of the Right of Children to Free and Compulsory
Education Act, 2009, the Board has been conducting OSSTET
examination every year strictly following the guidelines.
It is further pleaded that to maintain transparency and
to provide a chance to the candidates, the proposed answers,
scoring key are published in the internet inviting objections. In
the process all the objections received are reexamined and in
the cases where the suggested answer is found inappropriate,
steps are also taken to correct them. This system has been
followed to avoid any grievance of the candidate that there has
been any defect in the answer. This system is meant for a
healthy mode of examination and because the result will bind
upon the candidate and finality will be attached to the same.
In response to the notice under Annexure-B,
several objections were received by the Board, challenging the
key answers as published. The objections were placed before
the examining body. All the questions were referred to the
experts and basing on their report, the final key answers were
prepared and results were published basing on such final
answers. Thus, the Board has maintained absolute transparency
in the matter of conducting examinations and evaluations.
14. The second contention of Mr. B. Routray, learned
Senior Advocate is that when it can be demonstrated on the face
of the record that the key answers given by the Respondents/
Opposite Parties are incorrect in view of publication of contents
of a standard text book like Oxford Dictionary, for example, the
Court should have accepted the plea of the Appellants/
Petitioners and allowed the writ petitions. He relies upon the
judgment passed in the case of Guru Nanak Dev University
(supra).
15. We have gone through the judgment relies upon by
the learned Senior Counsel for the Appellants/ Petitioners. In
that case the procedures of inviting objection, referring the
objection to a body of experts and after the experts' opinion,
publication of a revised or corrected key answers has not been
followed. So, the said judgment cannot be stated to be squarely
applicable to the present case.
16. Moreover, when a process of examination is
challenged, it is proper on the part of the Courts to leave the
matters to the experts, though the Courts are considered experts
of all experts. Such principle cannot be stretched to such an
extent to overcome the opinion of an expert which is patently
not absurd. In the cases where the Court finds that experts were
consulted, they have applied their mind and have come to a
conclusion, such final conclusion of the experts should not be
interfered with by the Court on the drop of hat or on mere
submission, unless it is shown that experts' opinion were
tainted with malafide and/ or extraneous considerations. It may
be stated that in this case, the Appellants/ Petitioners have not
alleged malafide or have imputed extraneous considerations on
the part of the Board or its experts. So, we are of the opinion
that no valid ground has been made even if to issue notice in the
aforesaid appeals. In that view of the matter, we are not inclined
to interfere with the matters.
17. The Appellants-Writ Petitioners have not put-forth a
case that upon their objections, the matters were not considered
by the experts. In fact, this plea raised by the Board is not
challenged. What their challenge is that since eight objections
were accepted, grace marks should have been awarded in
favour of the Appellants/Petitioners. We again take note of the
fact that such a plea of acceptance of eight objections and not
awarding the benefit of such eight objections to the Appellants/
Petitioners has not been specifically raised either in
the writ petitions or in the appeals.
18. Moreover, it is not the case of the Appellants/
Petitioners that after their objections were considered and final
key answers sheets were published, their answers sheets were
corrected ignoring the eight objections. It is not demonstrated
by them that their answers, in the light of accepted objections,
were not included in their final results. It is also not
demonstrated by them that they had actually answered those
eight questions in their answer papers correctly, according to
the revised key answer sheets. We further take note of the fact
that in the writ petitions, the Petitioners have only annexed a
part of the answer sheets. The entire answer sheets have not
been annexed as Annexure to the writ petitions. So, it is
impossible to find out whether the eight questions were in fact
answered by them, rightly, as per the accepted objections and
the recast answers key.
19. Thus, in the ultimate analysis having considered the
undisputed fact that after the examination, a key answer sheets
were published in the internet inviting objections; a total of 363
objections were received. Experts were consulted. As per their
advice and experts' opinion, eight objections were accepted. A
total of 355 objections were not accepted. Then on the basis of
the opinion of the experts, the final key answer sheets were
published. At the cost of repetition, we again take note of the
fact that it is not the case of any of the Petitioners that their
answer sheets were not evaluated as per second answer sheets,
i.e. the corrected key answers after consideration of the
objections and experts' opinion.
20. The facts of the reported case i.e. of the case of Guru
Nanak Dev University (supra) are distinguishable. In that case,
no objections were invited on the fist publication of the key answers.
From paragraphs- 3 and 4 of the said case, it is abundantly clear that
the Punjab Medical Entrance test was conducted by the appellant
University on 30.06.2005. About 10,000 students appeared in the
said test. The results were declared on 02.07.2005. There were 200
questions in the objective form- 50 each for Physics, Chemistry,
Botany and Zoology. There were multi-choice answers; four options
were available to the students. They had to opt for one correct
answer from A to D. These facts of the case of Guru Nanak Dev
University (supra) are similar to the present case.
However, the distinction arises on the following
aspects:- after declaration of the results, writ petition was filed by some
of the students, inter alia, alleging that the key answers to 21 questions
were incorrect. The High Court appointed the Central Board of Secondary
Education (for short "CBSE") to examine the correctness of key answers
of the said 21 questions. Against the orders passed by the High Court so
directing in terms of its orders dated 18.07.2005 and 22.07.2005, the
appellant University filed special leave petitions but, for the present
purpose, it is not necessary to go into those aspects since the High Court
has finally decided the matter and these appeals are against the final
judgment of the High Court.
21. So, in the cases in hand, the multiple choice
questions were given to the candidates. They took part in the
examination. Thereafter, the Board published the key answer
sheets and invited objections. After objections were received,
the objections were again referred to the experts. So, what the
High Court of Punjab and Haryana at Chandigarh did by
appointing the Central Board of Secondary Education to
examine the correctness of key answers in respect of 21
questions in fact has already been done by the Board in these
cases. So, the reported case of Guru Nanak Dev University
(supra) is not applicable to the present case.
22. Rather, the observations of the Hon'ble Supreme
Court in the case of Richal and Others (supra) are more
pertinent to the present cases. In the reported case of Richal
and Others (supra), Rajastan Public Service Commission
conducted examination; after completion of examination, key to
the answers was published inviting objections regarding the
answer key. Many candidates submitted objections with regard
to different subjects, with regard to Paper-I and Paper-II. Then,
the Commission declared the result, against which several writ
petitions were filed questioning various answers as per final
answer key. Dealing with such matters, at paragraph-19, the
Hon'ble Supreme Court has held that "the key answers prepared by
the paper-setter or the examining body is presumed to have been prepared
after due deliberations. To err is human. There are various factors which
may lead to framing of the incorrect key answers. The publication of key
answers is a step to achieve transparency and to give an
opportunity to candidates to assess the correctness of their answers. An
opportunity to file objections against the key answers uploaded by
examining body is a step to achieve fairness and perfection in the process.
xx xx xx" The objections to the key answers were examined by
the experts and thereafter corrective measures should have been
taken by examinees. In the reported case of Richal and Others
(supra), the Hon'ble Supreme Court noted that after
consideration of the objections, final key to the answers was
published by the Commission. Thereafter, several writ petitions
were filed challenging the corrected key answers adopted by the
Commission. The High Court repelled the challenge accepting
the views of the experts. The candidates still unsatisfied, have
come up to the Hon'ble Supreme Court by filing the appeals.
23. The procedures followed by the Hon'ble Supreme
Court in the reported case of Richal and Others (supra) have,
in fact, been followed by the Board in these cases. After
publication of the key answers which were open to objections,
objections were received and referred to the experts. The
experts evaluated the objections and gave their suggestions, and
in accordance to their suggestions, final key answers were
published. It is not the case of the Appellants/ Petitioners and
not they have demonstrated that that their answer sheets were
not evaluated as per the revised final key answers. So, we are
not inclined to interfere with the matters.
24. In that view of the matter, we are of the opinion
that the Appellants/ Petitioners have not established or have not
demonstrated conclusively that they were not given benefits of
eight incorrect answers stated to be published in the first answer
sheets which were open to objection. Therefore, we are not
inclined to accept the contention raised by Mr. B. Routray,
learned Senior Advocate for the Appellants/Petitioners.
25. Accordingly, all the aforesaid Writ Appeals are
dismissed in limine.
26. As the restrictions due to resurgence of Covid-19 are
continuing, learned counsel for the parties may utilize a printout
of the order available in the High Court's website, at par with
certified copy, subject to attestation by concerned Advocate, in
the manner prescribed vide Court's Notice No.4587 dated 25th
March, 2020 as modified by Court's Notice No.4798 dated 15th
April, 2021.
........................
(S. K. Mishra)
Judge
.........................
(Savitri Ratho)
Judge
BJ
