Asish Kumar SwaIn Vs. State of Orissa and ors. - Court Judgment

Excerpt:

.....appeal shall lie. even otherwise, the word judgment as defined under section 2(9) means a statement given by a judge on the grounds of a decree or order. thus the contention that against an order passed by a single judge in an appeal filed under section 104 c.p.c., a further appeal lies to a division bench cannot be accepted. the newly incorporated section 100a in clear and specific terms prohibits further appeal against the decree and judgment or order of a single judge to a division bench notwithstanding anything contained in the letters patent. the letters patent which provides for further appeal to a division bench remains intact, but the right to prefer a further appeal is taken away even in respect of the matters arising under the special enactments or other instruments having the force of law be it against original/appellate decree or order heard and decided by a single judge. it has to be kept in mind that the special statute only provide for an appeal to the high court. it has not made any provision for filing appeal to a division bench against the judgment or decree or order of a single judge. no letters patent appeal shall lie against a judgment/order passed by a..........the opposite party no. 2-circle inspector of schools, dhenkanal to cause revaluation of the answers given by the petitioner to question nos. 9 and 10 in the science paper and as per the marks to be awarded by such revaluation, to correct the marks given to the petitioner in the science paper by adding the extra marks, which the petitioner is admittedly entitled to, i.e. 16 marks plus the extra marks which may be awarded in question nos. 9 and 10. the entire exercise shall be done within a period of one month from the date of production of a certified copy of this order. after getting the question nos. 9 and 10 revalued/reassessed, the correct mark-sheet shall be issued to the petitioner immediately.urgent certified copy of this order be granted on proper application.

Judgment:

ORDER

M.M. Das, J.

1. Heard learned Counsel for the petitioner and the learned Counsel for the School and Mass Education Department.

2. The petitioner appeared in the Upper Primary Certificate Examination, 2007-08. Though the petitioner expected more marks in the Science paper, Drawing and Geography paper, but was awarded marks lesser than his expectation. He made an application for supply of xerox copies of the answer scripts as well as for rechecking. The District Examination Committee initimated the petitioner with regard to the result of rechecking of his answer scripts in Drawing and Geography, where some marks were increased. But in case of Science paper, the petitioner was intimated that there is no change in the marks awarded. In paragraph-7 of the writ application, the petitioner has mentioned the marks, which should have been awarded to him but the same has not been awarded in the Science Paper.

3. A counter affidavit was previously filed by the opposite party Nos. 2 and 3 and an additional counter affidavit was thereafter filed by the opposite party No. 3 on 16.9.2008. In the additional counter affidavit, the opposite party No. 3 has annexed the Scheme of Valuation and in paragraphs 4 and 5 thereof, it has been admitted that as stated in paragraph-7 of the writ application, the petitioner is entitled to get 16 more marks in total with regard to question Nos. 1 to 7 of the Science Paper. However, with regard to question Nos. 9 and 10, it has been stated in the additional counter affidavit that since the said questions are not objective type questions and there is no suggested answers in the Scheme of Valuation for the said questions, the same cannot be revalued.

4. I find from the Scheme of Valuation that answers with regard to question No. 9 were to be awarded with 2 marks for each of the bits if the candidate writes a single difference between two objects and if he gives two differences, he will be awarded with 4 marks. Similarly, separate marks have been prescribed to be allowed in case of question No. 10 for various parts of the answer. On examining the answer scripts of the petitioner, it appears that even though the petitioner has given two differences in each of the bits of question No. 9 but no marks have been allotted to the petitioner with respect to one of such differences, as he has been awarded with 2 marks each for each of the bits in question No. 9. According to the learned Counsel for the petitioner, the petitioner would be entitled to 8 more marks in the 4 bits of question No. 9. Similarly, according to him, the petitioner would be entitled to 4 more marks in the answer given to question No. 10. I, therefore, find that such answers given to question Nos. 9 and 10 have not been valued at all since such answers have neither marked as wrong nor right and no marks have been awarded for the same.

5. In view of the above this te a fit case, where direction should be issued to revalue the answer given to question Nos. 9 and 10.

6. The writ petition is, therefore, disposed of with a direction upon the opposite party No. 2-Circle Inspector of Schools, Dhenkanal to cause revaluation of the answers given by the petitioner to question Nos. 9 and 10 in the Science Paper and as per the marks to be awarded by such revaluation, to correct the marks given to the petitioner in the Science Paper by adding the extra marks, which the petitioner is admittedly entitled to, i.e. 16 marks plus the extra marks which may be awarded in question Nos. 9 and 10. The entire exercise shall be done within a period of one month from the date of production of a certified copy of this order. After getting the question Nos. 9 and 10 revalued/reassessed, the correct mark-sheet shall be issued to the petitioner immediately.

Urgent certified copy of this order be granted on proper application.