Rajnish Kumar Mishra vs The State Of Bihar
2023 Latest Caselaw 3236 Patna

          IN THE HIGH COURT OF JUDICATURE AT PATNA
                    Civil Writ Jurisdiction Case No.7561 of 2023
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Rajnish Kumar Mishra Son of Brahmchari Mishra, Resident of Village- Harpur, Post- Harpur Police Station - Baniyapur, District- Saran (Bihar)

... ... Petitioner Versus

1. The State of Bihar through the Principal Secretary Ministry of Education, Government of Bihar, Patna.

2. The Secretary, Ministry of Education, Government of Bihar, Patna.

3. The Director, Bihar State Higher Education, Government of Bihar, Patna.

4. The Vice Chancellor, Patna University, Patna.

5. The Examination Controller, Directorate of Distance Education, Patna University, Patna.

6. The Registrar, Directorate of Distance Education, Patna University, Patna.

... ... Respondents ====================================================== Appearance :

For the Petitioner : Mr.Ranjeet Choubey, Advocate For the State : Mr.Umesh Narayan Dubey, AC to GP-27 For the Patna Univ. : Mr.Manish Dhari Singh, Advocate ====================================================== CORAM: HONOURABLE MR. JUSTICE RAJEEV RANJAN PRASAD ORAL JUDGMENT Date : 25-07-2023

Heard learned counsel for the petitioner, learned

counsel for the State and learned counsel for the Patna

University.

2. Let the rejoinder be taken on the record.

3. This writ application has been filed seeking the

following reliefs:-

"i. For issuance of appropriate writ/s, order/s, direction/s to the respondents to re-check the assignment answer- sheet of the petitioner of Psychology 7th paper of B.A. (Hons.) Part-III Examination, which was submitted on 25.06.2022 by another lecturer/ professor or specialized agency of the other university.

ii. For further issue an appropriate writ/s, order/s, Patna High Court CWJC No.7561 of 2023 dt.25-07-2023

direction/s in the nature of mandamus to declared the petition a pass candidate after re-checking the assignment answer-sheet of the petitioner in Psychology 7th paper of B.A. (Hons) - Part - III because the petitioner has rightly attempted and explained the answer and also assessed himself that he will secured minimum passing marks i.e. 45% but in spite of that the respondents have illegally given Zero (O) marks in Assignment of 7 th paper (Psychology) B.A. (Hons) Part - III Examination. iii. For further issue a suitable compensation to the petitioner for his mental harassment and reputation loss in the society because of the wrong result of the petitioner.

iv. For further any other relief/s, order/s, direction/s, may deem fit and proper in the facts and circumstances of this case."

Case of the petitioner

4. It is the case of the petitioner that he is pursuing

B.A. (Hons.) in Psychology from Directorate of Distance

Education, Patna University. He had appeared in final

examination of B.A. Part - III Psychology (Hons.) in the annual

examination of the year 2022. He had submitted his assignment

of 7th Paper on 25.06.2022 and attempted all questions very

well, but when the result was published, the petitioner found

that he had secured Zero (O) marks in 7th Paper (Hons.) as a

result whereof he had been declared fail.

5. The petitioner being dissatisfied with the result

submitted his application on 12.09.2022 before the Examination

Controller of Patna University and prayed for re-checking of the

assignment answer-sheet of 7th Paper. The grievance of the Patna High Court CWJC No.7561 of 2023 dt.25-07-2023

petitioner is that the University did only recalculation (re-

totaling) of the marks of the petitioner but did not allow re-

evaluation.

5. Learned counsel for the petitioner submits that the

petitioner has obtained a copy of the 7th Paper of assignment

under the Right to Information Act on payment of cost. The

petitioner has assessed himself and found that he should have

secured the passing marks but he has been declared fail. It is

submitted that the respondents are playing with the future and

career of the petitioner hence under special and compelling

circumstance the petitioner has approached this Court.

7. Earlier when this matter was heard on 27.06.2023,

this Court passed the following order:-

"Learned counsel for the petitioner, learned counsel for the State as well as learned for the Patna University, Patna are present.

Learned counsel for the petitioner submits with reference to the answer sheets which have been obtained by the petitioner under the Right to Information Act, 2004 that the answer-sheets have not at all been properly evaluated. According to him, the petitioner has obtained very good marks in other papers of home assignment, there was no plausible reason to award him zero marks in Honours Paper No. 7. Learned counsel has relied upon an order dated 07.04.2017 passed by a learned coordinate Bench of this Court in CWJC No. 575/2017 (Kavya Singh Vs. The State of Bihar and Others) to submit that in exceptional circumstance, in the said case this Court directed the Chairman of the Bihar School Examination Board to look into the matter and get the answer-sheet of the petitioner re-checked/re-evaluated. He has also relied Patna High Court CWJC No.7561 of 2023 dt.25-07-2023

upon a copy of order dated 11.07.2018 passed by Hon'ble Division Bench of this Court in which while rejecting the Letters Patent Appeal, the Hon'ble Division Bench observed that in case the petitioners obtain answer-books under the Right to Information Act and point out discrepancies or error in evaluation of the answer-books, the same would be the subject to review in accordance with law before appropriate court or forum.

At this stage, learned counsel for the Patna University, Patna prays for and is granted two weeks' time to seek instruction and file a counter affidavit. The affidavit must disclose as to whether or not the University has conducted re-evaluation of answer- sheets in any case treating the same in exceptional category.

List this matter under the same heading after two weeks i.e. 12th July, 2023 maintaining it's position."

Stand of the University

8. A counter affidavit has been filed on behalf of the

University. Reference has been made to clause 9.1 of the

Examination Regulations. According to which "if a candidate

secures Zero marks in Home Assignment paper he/she shall fail

in the examination."

9. Learned counsel for the University submits that

there is no provision for re-evaluation of the assignment paper.

Reference to Section 29 of the Patna University Act (hereinafter

referred to as the "Act") has been made to submit that there is

no re-evaluation provision. In paragraph '9' of the counter

affidavit a specific statement has been made that there is no

provision for re-evaluation and emphasis has been given upon Patna High Court CWJC No.7561 of 2023 dt.25-07-2023

sub-section (2) of Section 29 which talks of fair conduct of

examination and the evaluation process. In past also, it has not

taken place.

10. Learned counsel for the University relies upon the

judgment of the Hon'ble Supreme Court in the case of Dr. NTR

University of Health Sciences Vs. Dr. Yerra Trinadh reported

in AIR 2022 SC 5523.

Consideration

11. Having heard learned counsel for the petitioner,

learned counsel for the University as also the State, this Court

finds that the whole case of the petitioner rests upon his self-

assessment of the answer-sheets of the assignment paper no. 7.

According to his own assessment, he should have secured at

least the pass marks but the examiner has given him Zero (O)

marks. For this reason he is seeking re-evaluation of his answer-

sheet, but the University is very categorical in it's approach in

saying that there is no provision for re-evaluation of the marks.

Section 29(2) of the Act has been referred to, which reads as

under:-

"29(2). The Examination Board shall render advice to the Vice-Chancellor on conduct of examinations and appointment of examiners, setting and moderating question papers, preparation, moderation and publication of examination results, submission of report of such examination result to the Academic Council and generally regulating the methods of improvement in the Patna High Court CWJC No.7561 of 2023 dt.25-07-2023

procedure of correct evaluation of achievement of students and the Vice-Chancellor shall be competent to take final decision.

Provided that the Vice-Chancellor shall appoint the question setters and examiners from the panel of names submitted by the Examination Board."

12. Earlier this Court had specifically called upon the

University to say as to whether in past any re-evaluation of the

answer-sheets have been ordered, the answer has come in

paragraph '9' of the counter affidavit wherein it is stated that in

past also it has never taken place.

13. The Hon'ble Supreme Court has recently

considered the scope of judicial review with regard to re-

evaluation of the answer-sheets. Paragraph '9' of the judgment

of the Hon'ble Apex Court reads as under:-

"9. Apply the law laid down by this Court in the aforesaid decisions to the facts and circumstances of the case on hand, we are of the opinion that the High Court was not at all justified in calling the record of the answer scripts and then to satisfy whether there was a need for re-evaluation or not. As reported, the High Courts are calling for the answer scripts/sheets for satisfying whether there is a need for re-evaluation or not and thereafter orders/directs re-evaluation, which is wholly impermissible. Such a practice of calling for answer scripts/answer 9 sheets and thereafter to order re- evaluation and that too in absence of any specific provision in the relevant rules for re-evaluation and that too while exercising powers under Article 226 of the Constitution of India is disapproved."

14. This Court, having heard learned counsel for the

parties and on perusal of the records as also keeping in view the Patna High Court CWJC No.7561 of 2023 dt.25-07-2023

judgment of the Hon'ble Apex Court, is of the considered

opinion that the scope of judicial review under Article 226 of

the Constitution of India cannot be extended in the present case

by issuing a writ for re-evaluation of the answer-sheets when

there is no such provision either under the Act or under the

Examination Regulations of the University and in past it has not

taken place.

15. This writ application has, thus, no merit. It is

dismissed, accordingly.

(Rajeev Ranjan Prasad, J) Rajeev/-

AFR/NAFR                        AFR
CAV DATE
Uploading Date             25.07.2023
Transmission Date