Dr. Sreekar Amaravadi vs The State Of Telangana
2022 Latest Caselaw 5996 Tel

                                    1


             HON'BLE SRI JUSTICE K.LAKSHMAN

     WRIT PETITION NOs.37214, 36718 AND 38315 OF 2022

COMMON ORDER:

      The lis involved in the present writ petitions is similar, therefore,

they were heard together and are disposed off vide the following

common order.

      2. Heard Sri D.V.Nagarjuna Babu, learned Senior Counsel

representing Sri G. Chandra Sekhar Rao, learned counsel for the

petitioner in W.P.No.37214 of 2022 and 38315 of 2022 and also Sri

Sandeep Reddy Soma, learned counsel from the petitioner in

W.P.No.36718 of 2022 and Sri A. Prabhakar Rao, learned Standing

Counsel appearing for 2nd respondent. Perused the record.

Facts of the case:-

      3. The Petitioner in W.P. No. 36718 of 2022 is a first year MBBS

student who secured 94 marks in Human Anatomy paper as against the

required aggregate of 100 marks in the supplementary exams.

According to the said Petitioner, she passed in the remaining two

subjects (Biochemistry & Physiology) and as per the National Medical

Council guidelines if any student passes the remaining two subjects and

secures 95 marks, he/she is entitled to 5 grace marks. Petitioner
                                           2

contends that evaluation of her answer scripts was done improperly and

she is entitled to 1 extra mark.

           4. The Petitioners in W.P. No. 37214 of 2022 and W.P. No. 38315

of 2022 are pursuing Post Graduate studies in different medical colleges.

They have failed to secure the required minimum aggregate of 200

marks to pass the Post Graduate examination. Alleging that there are

large scale discrepancies in the evaluation of answer scripts, the

Petitioners have filed the said writ petitions.

           5. Contentions of the Petitioners:-

       i. Relying on the decision in Dr. Kishore Kumar v. State of A.P.1,

                it was contended that the answer scripts were improperly

                evaluated. As required under the said decision, the said answer

                scripts did not record the remarks/comments of the examiners.

                In cases of digital evaluation of answer scripts, digital tools

                like stylus have to be used to evidence the application of mind

                by the examiner on each page of the answer script. In the

                present case, the principles laid down in Kishore Kumar

                (supra) were not followed while evaluating the answer scripts.




1
    2016 (6) ALT 408.
                                         3

    ii. The evaluation process in the present case was not fair and

             transparent as the guidelines in Kishore Kumar (supra) were

             not followed.


    iii. Reliance was placed on Sanjay Singh v. U.P. Public Service

             Commission2 and President, Board of Secondary Education

             v. D. Suvankar3 to contend that the evaluation was improper

             due to large scale variance in marks allotted.


    iv. The guidelines of the National Medical Council provide that the

             answer scripts shall be examined by 4 examiners out of which

             2 examiners shall be from another University/State. In the

             present case, the evaluation was not done by examiners

             belonging to another State/University.


    v. The Petitioners applied for recounting but were not allowed to

             view and verify copies of their answer scripts. Not allowing to

             view their answer scripts during recounting is illegal, arbitrary

             and irrational. Reliance was placed on CBSE v. Aditya

             Bandopadhyay.4


2
  (2007) 3 SCC 720.
3
  (2007) 1 SCC 603.
4
  (2011) 8 SCC 497.
                                   4

vi. In W.P. No. 37214 of 2022 and W.P. No. 38315 of 2022, the

       Petitioners contended that there was a large-scale variance

       (above 50%) in respect of many answers and therefore, their

       answer scripts shall be sent for fresh evaluation. Reliance was

       placed on the Regulations of Rajiv Gandhi University of

       Health Sciences, Karnataka to contend that in case of variance

       above 50% between examiners, answer scripts have to be re-

       evaluated.

vii.   In W.P. No. 36718 of 2022, the Petitioner therein contended

       that in Human Anatomy (Paper II), she was allotted 55, 25 &

       45 respectively by three evaluators. In Human Anatomy (Paper

       II), in respect of question no. 1 & 2, she was allotted 20, 7 &

       16.5. In Human Anatomy (Paper I), in respect of question no.

       4, she was allotted 3, 0.5 & 2.5. In Human Anatomy (Paper I),

       in respect of question no. 8, she was allotted 2, 0.5 & 2.

       Therefore, as there is a huge variance between the lowest

       evaluator and the highest evaluator, the answer scripts of the

       Petitioner shall be re-evaluated.

   6. Contentions of the Respondents:-
                                            5

       i. The pass percentage of the candidates in W.P. No. 37214 of 2022

               and W.P. No. 38315 of 2022 for Post-Graduation examination

               was as high as 94.98%. In spite of that, the Petitioners failed to

               clear the examination.

       ii. Digital evaluation was conducted in accordance with the

               guidelines prescribed by the National Medical Council. The

               evaluation is done by experienced professors.

       iii. Explaining the procedure of digital evaluation, it was contended

               that there was proof that every answer was evaluated and

               marks were awarded.

       iv. The answer scripts of the Petitioner were recounted and no

               discrepancies were found.

       v. The evaluation was conducted without any aberrations and

               irregularities.

       vi. Relying on Dr. NTR University of Health Sciences v. Yerra

               Trinadh5, Ran Vijay Singh v. State of U.P.6 and Pramod

               Kumar Srivastava v. Chairman, Bihar Public Service




5
    2022 SCC OnLine SC 1520.
6
    (2018) 2 SCC 357.
                                            6


                Commission7 to contend that re-evaluation of answer scripts

                cannot be permitted in absence of rules permitting the same.

           7. Findings of the Court:-

           From the facts of the case, the following issues arise before this
Court:

       i. Whether the Petitioners are entitled to view the physical copies of
            their answer scripts?

       ii. Whether Petitioners have made out a case for re-evaluation of
             their answer scripts?

Issue-i :-

                    Whether the Petitioners are entitled to view the physical
                    copies of their answer scripts?

           8. It is no longer res integra that students are entitled to view

physical copies of their answer scripts, unless the relevant examination

rules prohibit the same. The Supreme Court in Aditya Bandopadhyay

(supra) has held as follows:

         18. In these cases, the High Court has rightly denied the prayer for
         re-evaluation of answer-books sought by the candidates in view of
         the bar contained in the rules and regulations of the examining
         bodies. It is also not a relief available under the RTI Act. Therefore
         the question whether re-evaluation should be permitted or not, does
         not arise for our consideration. What arises for consideration is the
         question whether the examinee is entitled to inspect his evaluated
         answer-books or take certified copies thereof. This right is claimed
         by the students, not with reference to the rules or bye-laws of
         examining bodies, but under the RTI Act which enables them and
         entitles them to have access to the answer-books as 'information'

7
    (2004) 6 SCC 714.
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     and inspect them and take certified copies thereof. Section 22 of
     RTI Act provides that the provisions of the said Act will have
     effect, notwithstanding anything inconsistent therewith contained in
     any other law for the time being in force. Therefore the provisions
     of the RTI Act will prevail over the provisions of the bye-
     laws/rules of the examining bodies in regard to examinations. As a
     result, unless the examining body is able to demonstrate that the
     answer-books fall under the exempted category of information
     described in Clause (e) of Section 8(1) of RTI Act, the examining
     body will be bound to provide access to an examinee to inspect and
     take copies of his evaluated answer-books, even if such inspection
     or taking copies is barred under the rules/bye-laws of the examining
     body governing the examinations. Therefore, the decision of this
     Court in Maharashtra State Board (supra) and the subsequent
     decisions following the same, will not affect or interfere with the
     right of the examinee seeking inspection of answer-books or taking
     certified copies thereof.
     ******

27. We, therefore, hold that an examining body does not hold the evaluated answer-books in a fiduciary relationship. Not being information available to an examining body in its fiduciary relationship, the exemption under Section 8(1)(e) is not available to the examining bodies with reference to evaluated answer-books. As no other exemption under Section 8 is available in respect of evaluated answer books, the examining bodies will have to permit inspection sought by the examinees.

9. Relying on the decision on Aditya Bandopadhyay (supra), this

Court granted interim order allowing the Petitioners to view and verify

their answer scripts. Therefore, as far as issue no. 1 is concerned, this

Court is of the opinion that Petitioners/Students are entitled to view

physical copies of their answer scripts unless the same is prohibited by

any law or where such information is exempted under the Right to

Information Act, 2005.

Issue-ii:-

10. The Petitioners contended that their answer scripts have to be

re-evaluated on two grounds. Firstly, on the ground that the guidelines

in Kishore Kumar (supra) were not followed and secondly, on the

ground that the evaluation was improper on account of huge variance

between the marks allotted by the examiners.

11. Before deciding the issue at hand, it is apt to discuss the scope

of powers exercised by this Court under Article 226 of Constitution of

India in respect of re-evaluation of answer scripts.

12. The Supreme Court has time and again held that re-evaluation

of answer scripts is impermissible in absence of rules permitting the

same. The Supreme Court has held that the courts can order re-

evaluation only in rarest of rare cases where it is ex facie evident that

evaluation of answer scripts was done in an arbitrary fashion and

contrary to the prescribed rules.

13. In The Secretary, All India Pre-Medical/Pre-Dental

Examination, C.B.S.E. v. Khushboo Shrivastava8 has held as follows:

7. We find that a three-Judge Bench of this Court in Pramod Kumar Srivastava v. Chairman, Bihar Public Service Commission, Patna and Ors. (supra) has clearly held relying on Maharashtra State Board of Secondary and Higher Secondary

(2014) 14 SCC 523

Education and Anr. v. Paritosh Bhupeshkumar Sheth and Ors.

(supra) that in the absence of any provision for the re- evaluation of answers books in the relevant rules, no candidate in an examination has any right to claim or ask for re- evaluation of his marks. The decision in Pramod Kumar Srivastava v. Chairman, Bihar Public Service Commission, Patna and Ors. (supra) was followed by another three-Judge Bench of this Court in Board of Secondary Education v. Pravas Ranjan Panda and Anr. (2004) 13 SCC 383 in which the direction of the High Court for re-evaluation of answers books of all the examinees securing 90% or above marks was held to be unsustainable in law because the regulations of the Board of Secondary Education, Orissa, which conducted the examination, did not make any provision for re-evaluation of answers books in the rules.

8. In the present case, the bye-laws of the All India Pre- Medical/Pre-Dental Entrance Examination, 2007 conducted by the CBSE did not provide for re-examination or re-evaluation of answers sheets. Hence, the Appellants could not have allowed such re-examination or re-evaluation on the representation of the Respondent No. 1 and accordingly rejected the representation of the Respondent No. 1 for re-examination/re- evaluation of her answers sheets. The Respondent No. 1, however, approached the High Court and the learned Single Judge of the High Court directed production of answer sheets on the Respondent No. 1 depositing a sum of Rs. 25,000/- and when the answer sheets were produced, the learned Single Judge himself compared the answers of the Respondent No. 1 with the model answers produced by the CBSE and awarded two marks for answers given by the Respondent No. 1 in the Chemistry and Botany, but declined to grant any relief to the Respondent No. 1. When Respondent No. 1 filed the LPA before the Division Bench of the High Court, the Division Bench also examined the two answers of the Respondent No. 1 in Chemistry and Botany and agreed with the findings of the learned Single Judge that the Respondent No. 1 deserved two additional marks for the two

answers. In our considered opinion, neither the learned Single Judge nor the Division Bench of the High Court could have substituted his/its own views for that of the examiners and awarded two additional marks to the Respondent No. 1 for the two answers in exercise of powers of judicial review under Article 226 of the Constitution as these are purely academic matters. This Court in Maharashtra State Board of Secondary and Higher Secondary Education and Anr. v. Paritosh Bhupeshkumar Sheth and Ors. (supra) has observed:

... As has been repeatedly pointed out by this Court, the Court should be extremely reluctant to substitute its own views as to what is wise, prudent and proper in relation to academic matters in preference to those formulated by professional men possessing technical expertise and rich experience of actual day-to-day working of educational institutions and the departments controlling them. It will be wholly wrong for the Court to make a pedantic and purely idealistic approach to the problems of this nature, isolated from the actual realities and grass root problems involved in the working of the system and unmindful of the consequences which would emanate if a purely idealistic view as opposed to a pragmatic one were to be propounded....

14. Similarly, in Ran Vijay Singh (supra), the Court discussing

its previous decisions held as follows:

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.

31. On our part we may add 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.

32. It is rather unfortunate that despite several decisions of this Court, some of which have been discussed above, there is interference by the Courts in the result of examinations. This places the examination authorities in an unenviable position where they are under scrutiny and not the candidates. Additionally, a massive and sometimes prolonged examination exercise concludes with an air of uncertainty. While there is no doubt that candidates put in a tremendous effort in preparing for an examination, it must not be forgotten that even the examination authorities put in equally great efforts to successfully conduct an examination. The enormity of the task might reveal some lapse at a later stage, but the Court must consider the internal checks and balances put in place by the examination authorities before

interfering with the efforts put in by the candidates who have successfully participated in the examination and the examination authorities. The present appeals are a classic example of the consequence of such interference where there is no finality to the result of the examinations even after a lapse of eight years. Apart from the examination authorities even the candidates are left wondering about the certainty or otherwise of the result of the examination-whether they have passed or not; whether their result will be approved or disapproved by the Court; whether they will get admission in a college or University or not; and whether they will get recruited or not. This unsatisfactory situation does not work to anybody's advantage and such a state of uncertainty results in confusion being worse confounded. The overall and larger impact of all this is that public interest suffers.

33. The facts of the case before us indicate that in the first instance the learned Single Judge took it upon himself to actually ascertain the correctness of the key answers to seven questions. This was completely beyond his jurisdiction and as decided by this Court on several occasions, the exercise carried out was impermissible. Fortunately, the Division Bench did not repeat the error but in a sense, endorsed the view of the learned Single Judge, by not considering the decisions of this Court but sending four key answers for consideration by a one-man Expert Committee.

15. The above decisions were considered and affirmed by the

Supreme Court in Bihar Staff Selection Commission v. Arun Kumar9

wherein the following was held:

20. This Court reiterates that the scope of judicial review Under Article 226 in matters concerning evaluation of candidates-particularly, for purpose of recruitment to public services is narrow. The previous decisions of the court; have constantly underscored that in the absence of any provision

(2020) 15 SCC 362.

for re-evaluation of answer sheets, judicial review should be rarely exercised-preferably under exceptional circumstances.

22. Given the clear declaration of law in the judgments of this Court, we are of the opinion that the unilateral exercise of re- valuation undertaken by the High Court (both by the single judge and the Division Bench) has not solved, but rather contributed to the chaos. No Rule or Regulation was shown by any party during the hearing, which justified the approach that was adopted. The BSSC, in our opinion, acted correctly in the first instance, in referring the answers to a panel of experts. If there were justifiable doubts about the recommendations of that panel, the least that should have been done, was to require the BSSC to refer the disputed or doubtful questions to another expert panel. That was not done; the "corrections" indicated by the single judge were accepted by the BSSC; several candidates who made it to the select list freshly drawn up pursuant to his directions, were appointed. The Division Bench, thereafter undertook the entire exercise afresh, compounding the matter further by not referring the disputed questions to any panel of experts. We are left reiterating the lament, (made in Ran Vijay) that the High Court's interference has not resulted in finality "to the result of the examinations" despite a long lapse of time. There is an air of uncertainty about the entire selection-nay, the entire cadre, because the inter se seniority of selected (and appointed) candidates is in a state of flux.

16. Recently, the Supreme Court in Yerra Trinadh (supra)

deprecated the High Courts from ordering re-evaluation of answer

scripts in absence of rules permitting the same. The relevant paragraphs

are extracted below:

16. Applying 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 reevaluation 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 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.

17. Even otherwise, in the present case, the University has adopted the digital evaluation which has been subsequently modified/improved and the deficiencies have been removed, which has now been approved by the High Court in the recent decision in Writ Petition No. 15865/2022. The digital evaluation process is reported to be scrupulously followed by the University. From the affidavit filed on behalf of the University on use of digital evaluation, it appears that all precautions are being taken to have the accurate evaluation digitally. There are specific instructions and trainings to the examiners while conducting digital evaluation. It is reported that the faculty has utilised the updated software by using the tools and annotations incorporated in the software adopted by the University. In any case, in absence of any regulation for re-evaluation of the answer scripts, either in the MCI rules or in the University Rules, the High Court is not justified in ordering re-evaluation of the answer scripts. As observed and held by this Court in the case of Ran Vijay Singh(supra) that sympathy or compassion does not play any role in the matter of directing or not directing re- evaluation of an answer sheet.

18. In view of the above and for the reasons stated above, the common judgment and order passed by the learned Single Judge ordering re-evaluation of the answer scripts, confirmed by the Division Bench by the impugned common judgment and order, is unsustainable. However, as observed hereinabove, as the results of the original writ petitioners after re-evaluation or appearing in the supplementary examination have been declared, while quashing and setting aside the impugned common judgments and orders passed by the learned Single

Judge as well as Division Bench of the High Court, the same shall not be affected and/or disturbed. The impugned common judgments and orders passed by the learned Single Judge as well as Division Bench ordering re-evaluation of the answer scripts in absence of any such provision in the relevant rules are hereby quashed and set aside. However, as observed hereinabove, the same shall not affect the declaration of the results of the original writ petitioners on re-evaluation or appearing in the supplementary examination.

17. During the course of hearing, a question was raised that there

is a conflict between the decisions in Ran Vijay Singh (supra) and

Yerra Trinadh (supra). The following parts in the said decisions were

referred to suggest that there is a conflict:

     Ran Vijay Singh (supra)                      Yerra Trinadh (supra)

If a statute, Rule or Regulation             Such a practice of calling for answer
governing an examination does not            scripts/answer sheets and thereafter to
permit re-evaluation or scrutiny of an       order re-evaluation and that too in
answer sheet (as distinct from               absence of any specific provision in
prohibiting it) then the Court may           the relevant rules for re-evaluation and
permit re-evaluation or scrutiny only if     that too while exercising powers under
it is demonstrated very clearly, without     Article 226 of the Constitution of
any "inferential process of reasoning or     India is disapproved.
by a process of rationalisation" and only
in rare or exceptional cases that a
material error has been committed;

18. It was contended by the Respondents that Yerra Trinadh

(supra) prohibits re-evaluation of answer scripts completely and does

not confer any discretion on the High Courts to order re-evaluation. On

the other hand, it was contended on behalf of the Petitioners that when

there is a conflict between the decision of two benches of co-ordinate

strength, the Court has to follow the one which in its view expresses the

correct position of law. The Petitioners relied on Jaydeo v. State of

Maharashtra10 and M/s Indo Swiss Time Ltd. v. Umrao11

19. According to this Court, there is no conflict between the

decisions in Ran Vijay Singh (supra) and Yerra Trinadh (supra). The

decision in Yerra Trinadh (supra) deprecated the practice of High

Courts in ordering re-evaluation of answer scripts as a matter of routine.

The said decision cannot be interpreted to mean that High Courts have

no power to order re-evaluation of answer scripts in the absence of rules

permitting the same. A harmonious construction of the findings of both

the decisions clearly indicates that in rare and exceptional cases the

High Court can order re-evaluation of answer scripts.

20. Therefore, at the cost of repetition, only in exceptional cases

the Court can order re-evaluation of answer scripts even when the rules

are silent.

2006 (2) Mh.L.J. 497.

AIR 1981 (P&B) 213.

21. Now coming to the facts of the case, the Petitioners'

contention that the guidelines in Kishore Kumar (supra) was not

followed is liable to be rejected. For the sake of convenience, the

procedures followed by the examiners in digital evaluation as explained

in the counter affidavit filed by the Respondents is extracted below:

Procedure      of     Digital           Procedure       of      Digital
Evaluation followed in Post             Evaluation followed in Ist year
Graduate             Medical            MBBS            Supplementary
Examinations    (W.P.   Nos.            Examination (W.P. No. 36718
37214 of 2022 and 38315 of              of 2022

D). It is submitted that the digital 5. It is submitted that the entire process evaluation is conducted in the of digital valuation is as follows: following steps: a) Digital evaluation portal link and login credentials are sent to eligible

i) Digital evaluation portal link and appointed examiners by mail. login credentials are sent to appointed b) Examiners have to do one time examiners by mail. The Examiner has registration in digital evaluation to do one time registration in digital portalthrough photo capture which evaluation portal through photo enables facial detection. capture which enables facial c) Online training is provided to all detection. Online training is provided examiners before starting evaluation to all examiners before starting and a declaration online has to be evaluation and a declaration online submitted by the examiners that he/she has to be submitted by the examiner has understood all the features of that he/she has understood all the digital evaluation. features of digital evaluation d) Answer booklets are assigned to

ii) Answer booklets are assigned to subject wise examiners randomly subject wise examiners randomly by bysoftware. software. Any Answer script stored in e) Answer script stored in the server the server can be evaluated by only can be evaluated by only one logged in one logged in examiner at any given examiners at any given time. Two time. Two Internal and two external examiners will evaluate each answer examiners will evaluate each answer script one after other and in case of script one after other for Post difference of 15% or more of marks Graduate examination. No copies of awarded third evaluation is done. answer scripts are made for purpose f) Once the examiners logs in of confidentiality and scanned answer successfully, the answer script will be scripts are not sent by mail to displayed on the screen from first page examiner for evaluation. onwards for evaluation. There is a

iii) Once the examiner logs in provision for examiners to enlarge the successfully, the answer script will be answer scripts for better viewing. displayed on the screen from first Examiners must click on "mark as page onwards for evaluation. There is read button" after reading every a provision for examiners to enlarge page to get the next page on screen the answer scripts for better viewing. for evaluation including unwritten Examiners must click on "mark as pages. Unless the examiners read button" after reading every page completes checking all the pages and to get the next page on screen for awards marks for all the questions, evaluation including unwritten pages. he will not able to submit the answer Unless the examiner completes booklet back to the server and get checking all the pages and awards next answer booklet for evaluation. marks for all the questions, he will not g) Examiners must award marks in able to submit the answer booklet the award sheet ranging from zero back to the server and get next answer to maximum marks for that booklet for evaluation.

respective question with fractions of

iv) After each answer is evaluated the 0.5 marks for every answer.

examiner marks annotation of Tick Totalling of marks is done by mark on answer script to indicate that the answer has been evaluated and software automatically after marks marks are awarded. are awarded to all questions.

v) Examiner must award marks in the h) If the examiners awards zero award sheet ranging from zero to marks for any question, he/she has maximum marks for that respective to provide specific remarks whether question with fractions of 0.5 marks the question is not attempted or the for every answer. Totalling of marks answer is incorrect. is done by software automatically i) One of the examiners is appointed after marks are awarded to all as Reviewer to verify the answers questions compulsorily. awarded zero marks to ascertain

vi) If the examiner awards zero whether the question is attempted or marks for any question, he/she has not. If the question is attempted, it is to provide specific remarks from a valued and marks are awarded.

drop box whether the question is           j) Examiners will be able to submit
not attempted or the answer is             the answer booklet back after
incorrect. One of the examiners is         evaluation by meeting the following
appointed as a reviewer to verify          conditions.
the answers awarded zero marks to          i) Minimum of 10 minutes is spent
ascertain whether the question is          for valuation of each answer script.
attempted or not and whether the           ii) Zero marks awarded questions
answer is incorrect.                       have been provided with specific
vii) Examiners will be able to             remarks of not answered or
submit the answer booklet back             incorrect answer from dropdown
after evaluation after fulfilling the      box.
following criteria.                        iii) After each page of answer script
a) Minimum of 10 minutes is spent          is read, examiners has to click on
for valuation of each answer script.       "mark as read button" for each of
b) Zero marks awarded questions            all the 64 pages.


have been provided with specific           iv) After each answer is evaluated
remarks of not attempted or                the examiner marks annotation on
incorrect answer from dropdown             answer script.
box                                        K) After logging in, if the examiner
c) After each page of answer script        moves away from the computer
is read, examiner has to click on          monitor the page will be locked and
"mark as read button" for each of          examiner has to login again to continue
all the 64 pages.                          evaluation. This step ensures that only
d) After each answer is evaluated          the registered examiners will conduct
the examiner marks annotation of           evaluation of answer scripts. If the
Tick mark on the answer script to          screen is idle for 5 minutes without
indicate that the answer has been          any activity, the displayed page will be
evaluated.                                 locked and examiner has to log in
viii) After logging in, if the examiner    again for continuation of evaluation.
moves away from the computer
monitor the page will be locked and
examiner has to login again to
continue evaluation. This step ensures
that only the registered and logged in
examiner only will conduct evaluation
of answer scripts. If the screen is idle
for 5 minutes without any activity, the
displayed page will be locked and
examiner has to log in again for
continuation of evaluation. It is
submitted that the entire log history of
evaluation time of examiner for each
answer script is recorded in the server
and can be verified if necessary.

22. A Division Bench of this Court in Kishore Kumar (supra)

held that in cases of digital evaluation to show that the examiner had

applied his/her mind and the fact that all the answers of the students

were considered, the Court held that it is mandatory to use such

marks/remarks evidencing application of mind. The Court did not make

it mandatory that every page of the answer script should be marked. It

only stated that technology shall be used to show that the examiner has

evaluated all the answers attempted by the students. The relevant

paragraphs are extracted below:

30. The online evaluation as illustrated above when is pointed out to the representative of service provider, the representative has fairly admitted that the scanned answer sheets produced in the batch of cases show no trace of evaluation by the Examiners. It is pertinent to remark that the utilization of available technology such as Abode, PDF format, Wacom, Stylus etc., would have certainly helped the University to achieve the objectives which it wanted to achieve by online evaluation. Use of available tools could have furnished complete, accurate and reliable Diagnostic Reports. At this juncture, the ratio laid down by the Hon'ble Supreme Court in Aditya Bandopadyaya's case MANU/SC/0932/2011 : (2011) 8 SCC 497 (supra) is taken note of. The clinical examination of a patient is the preferred option of Doctors. However, of late, more and more Diagnostic Reports are preferred for accuracy. The accomplishment of accuracy of a Diagnostic Report is possible with tools and technicians. The Vice Chancellor of 2nd respondent University is equipped to decide on the missing links viz., whether the incompleteness is due to tool or technician in evaluation and fix the link for accurate results. The issue ultimately stumbles on evaluation of answer scripts by keeping in view the reasoning/illustrations given above. The University cannot be said to have discharged the onus or responsibility in this behalf or placed before the Court evaluated scripts but is claiming Script Marks Report as evaluation by Examiners of answer sheets of petitioners and award of marks as correct. This Court prefers to go that far and not beyond because on the one hand evaluation of PG/Diploma answer scripts is an academic issue and on the other technological issue of online valuation for neither strictly involves legal principles for judicial review. The Court has examined the deficiency in online evaluation and to that extent, it is not the case of respondents that judicial review is unavailable. To the limited extent judicial review is permitted particularly by following ratio decidendi of (1) Sahiti's case (2) Adiya Bandopadya's case, (3) D.

Suvankar's case, the discussion is concluded. Further, the Script Marks Report copied and posted in respect of a few answer sheets concur with the omissions and commissions pointed out by the petitioners.

33. Hence, the summary and conclusions are as follows: "(a) the online evaluation of answer scripts for the examinations held in May/June, 2016 according to the stand taken by the 2nd respondent in para 2 of the counter-affidavit is in continuation of a pilot project introduced in October, 2015 and requires updating tools and skills of Examiners.

(b) The expertise and technical compatibility of Examiners at respective centres is a matter required to be re-examined by the University and compatibility is archived by undertaking demo classes.

(c) Consistency in the evaluation i.e., writing remarks by the Examiner on the scanned/answer scripts could not be shown in the answer sheets. Hence, keeping in perspective the technology uniform written instructions to Examiners could be issued.

(d) The legitimate expectation of a student is that the answers written are at least looked at and appreciated for evaluation. In the case on hand, with the illustration given above, this Court is of the view that Script Answers Reports are treated as evaluation of answer scripts and no material is placed to satisfy that the evaluation of answer scripts, in fact, had taken place and Script Marks Report is the summary of such evaluation."

23. In the present case, pursuant to the interim orders of this

Court, the Petitioners were allowed to view their answer scripts. Further,

this Court also had an occasion to view the answer scripts. This Court is

satisfied that the procedure extracted above was followed by the

Respondent authorities. The procedure, though did not provide for

marking of answer scripts, provided that all the answers were to be

marked before the answer script was submitted. In cases where, 0 marks

were awarded, a column for remarks was provided to give reasons. All

this suggests that the procedure incorporated steps to ensure that answer

scripts were evaluated by due application of mind. At the cost of

repetition, on perusing the answer scripts it was clear that the answer

scripts were duly evaluated.

24. The Petitioners also contended that there is huge variance

between the marks allotted by different examiners. This Court cannot

accept the said contention. In W.P. No. 36718 of 2022, since there was

huge variance between the first and second evaluator, the answer script

was evaluated by a third evaluator. After such third evaluation, the

average of three evaluations was taken. Therefore, the Petitioner in the

said writ petition was protected by adoption of a fair procedure

providing further evaluation by a third evaluator. Therefore, the

contention of the Petitioner cannot be accepted.

25. In W.P. No. 37214 of 2022 and W.P. No. 38315 of 2022 apart

from alleging huge variance, the Petitioners did not place material on

record to suggest such variance. Additionally, their ground for re-

evaluation is that they missed the aggregate score of 200 marks by a

very thin margin. The said contentions cannot be accepted.

26. As stated above, re-evaluation cannot be ordered as a matter

of routine unless the rules permit it. In the present case, the Petitioners

have failed to show that the evaluation process was arbitrary, unfair and

irrational. Mere surmises and conjectures are insufficient to seek re-

evaluation of answer scripts. Further, sympathy and concession is not a

ground to seek re-evaluation of answer scripts.

27. Recently, the Delhi High Court in Mayank Garg v. Delhi

High Court12, dealt with a similar factual situation. The Petitioner there

sought re-evaluation of his answer scripts on the ground that he failed to

qualify the exam by one mark. The Court refused to accept the said

contention and held that only in rare cases re-evaluation is permitted.

The relevant paragraphs are extracted below:

1. The petitioner has filed the present petition under Article 226 of the Constitution of India, inter alia, praying that direction be issued to the respondent (hereafter 'DHC') to 'recheck/re-examine/reassess' the petitioner's answer-sheets in respect of examination paper, Law- III. The petitioner has scored 89 marks out of the maximum of 200 marks in the said paper. This is one mark short of qualifying threshold of 45%. The petitioner's aggregate marks of all papers is 437 marks out of a maximum of 750 marks. This is the highest amongst all unsuccessful candidates and is significantly higher than the qualifying cut off of 50%. The petitioner has been eliminated from the competitive examination for appointment to Delhi Higher Judiciary Services, solely on account of not securing 45% marks in the examination paper, Law-III.

2022 SCC OnLine Del 2876

18. Thus, in rare and exceptional cases where it is established that there is a manifest error in evaluation of examination papers, the court may exercise powers under Article 226 of the Constitution of India to provide appropriate relief. In cases where it is established that the right of candidates for a fair evaluation in accordance with the specified procedure has been impinged, it may be necessary for the courts to exercise power to ensure that the rights of examinees are preserved.

19. The present case is undoubtedly a hard case but we are unable to accept that there is any manifest error in evaluation of the answer sheets that warrants any interference by this Court. It is relevant to note that answers to the questions set in the paper for Law-III were essay type questions and were evaluated subjectively. This Court is informed that to ensure consistency, the answer-sheets were evaluated by the same examiner.

20. It is possible that on a re-evaluation, the petitioner may secure higher marks. However, absent circumstances that indicate any flaw in the marking system or the procedure followed for evaluation of answer sheets, this Court is unable to lend any assistance to the petitioner.

21. In terms of the selection scheme, a number of candidates equaling three times the number of vacancies can be admitted to appear in viva voce. In the present case, the number of vacancies for the general candidates is 32 and therefore, as many as 96 candidates of the general category could have been admitted for viva voce. Had the marking been any more lenient, a larger number of candidates would have qualified.

22. In the present case there are at least five candidates, whose marks are falling short of the qualifying marks by two marks or less. One of the candidates has not been short-listed because he has secured 67 marks in the paper of general knowledge and language, which is 0.5 marks less than the qualifying cut-off. Marks of another candidate are short by 1.5 marks in the same paper. There is also a similarly placed candidate as the petitioner, who has

secured 89 marks in Law-III and has not been selected even though his aggregate marks in all papers is above 50%.

23. If any paper is to be revaluated, it would also be necessary to reevaluate the answer-sheets of these candidates as well.

24. In the given facts, this Court is unable to accept that any interference in the marks awarded to the petitioner is permissible, or any direction can be issued for revaluation of answer sheets, in exercise of its power under Article 226 of the Constitution of India.

25. The petition is, accordingly, dismissed. All pending applications are disposed of.

28. This Court agrees with the view express by the Delhi High

Court and the said view was affirmed by the Supreme Court wherein it

dismissed the special leave petition SLP (C) No. 17240 of 2022

preferred by the Petitioner therein.

29. Therefore, in light of the aforesaid discussion, the present writ

petitions are liable to be dismissed.

30. In the result, these three writ petitions are dismissed.

As a sequel, the miscellaneous petitions, if any, pending in the

writ petition shall stand closed.

_________________ K. LAKSHMAN, J Date: 19.11.2022.

Note: Issue CC forthwith.

b/o. vvr