P.K. Mohanty, J.
1. The petitioner, who appeared at the M.Com. Part-I Examination, 1997 as a Non-Collegiate Candidate under the Utkal University, has approached this Court for a writ of mandamus and/or an appropriate direction to the University for re-evaluation of the answer papers in Papers-Ill and IV.
2. The petitioner's case, in short, is that he was a brilliant student throughout and he had passed all examinations beginning from H.S C. till B.Com. (Hons.) in 1st Class. However, he appeared as a Non-Collegiate candidate in M.Com. Patt-I Examination, 1997 under Utkal University bearing Roll No. 219V06970037 at the Commerce Department of the Utkal University Centre. The M.Com. Part-I examination consists of four papers each carrying 100 marks and he did very well in all the papers and was expecting to secure more than 60% of the marks in aggregate out of 400 marks. But the result, which was published in the month of April, 1998 revealed that he secured less than 50% of marks which shocked him. A copy of the Mark-sheet is annexed as Annexure-5. According to the petitioner, he secured 56 marks in Paper-Ill and 31 marks in Papers-IV, out of 100 marks each, which was far behind his legitimate expectation, whereas he expected 75 marks out of 100 and 80 out of 100 in Papers-III and IV respectively, as per his performance in the examination and the marks in these two papers do not reflect the true merit of the petitioner keeping in view his good academic career as well as performances in these two papers due to improper, arbitrary, whimsical evaluation of the answer papers' by the examiners ignoring the guidelines framed as in the 'Central Valuation Manual'. It is the claim of the petitioner that under such circumstances, the petitioner has a right, to get his answer papers correctly re-evaluated to get appropriate marks according to his performance as he has not got fair deal from the University. It is the claim of the petitioner that on a look at the question, which has been reflected in the writ petition answered by the petitioner, it is manifest that the question No. 1 is a matter dealing with a problem and the rest of the questions are short type to test the perception of the basic idea of the examinee on the subject matter of the papers. The petitioner claims that if the answer scripts of the petitioner would be compared being referred to the relevant contents of the Test Book, he would be entitled to much more marks and as such there is compelling reasons to re-evaluate papers III and IV.
3. The petitioner apprehending improper/arbitrary evaluation of the answer scripts in, respect of Papers-Ill and IV and thinking that the marks secured by him on the answer to each question might not have been correctly added by the examiner though computer, filed an application before the opp. party No. 1 on 11-5-1998 depositing Rs. 26/- for re-checking of the marks in the said papers, but the opp. parties did not intimate the result of the re-checking of the marks till date; which confirms his apprehension that the answer scripts of Papers-Ill and IV have not been correctly/fairly evaluated or their crept errors into the addition of marks through computer on the answer papers. The petitioner alleges that the examiners, the Chief Examiners and the Scrutinisers did not perform their duties and responsibilities as assigned to them under the Central Valuation Manual to evaluate the answer papers of question papers-Ill and IV.
4. The opposite parties have filed a comprehensive counter affidavit denying the allegations and claims made by the petitioner with regard to arbitrary, reckless and improper evaluation. It is their stand that the petitioner has been awarded marks according to his performance in the examination as reflected in the answer scripts. The answer scripts of the petitioner as well as other candidates have been valued properly by the competent Assistant Examiners on the supervision of the Chief Examiners appointed by the University to ensure proper evaluation of the answer papers and all possible efforts have been taken by the University to avoid any possible error.
5. The petitioner made an application for re-addition of marks only in one paper i. e. paper-IV by depositing the prescribed fees and on receipt of the application, the answer script was properly verified and marks awarded by the examiner have been properly re-added and it was founded that they are correct. The petitioner was intimated vide letter dated 25-8-1998 at the address mentioned in the application, a copy of which is Annexure-A.
6. The University takes the specific stand that there is no provision under the University Act, Statute, Rules or Regulations for re-evaluation of answer scripts and there is only provision for re-addition of marks, which has already been done and the petitioner has been informed. It is asserted that the general instructions have been provided to all examiners to follow the same and therefore, the question of disobedience of instruction does not arise. It is the specific stand of the University that under the instruction, a copy of which is Annexure-B. the answer scripts in Papers III and IV of the petitioner have been carefully examined by the competent examiners and all care have been taken to avoid arbitrariness.
7. Sri R. K. Samantaray, learned counsel for the petitioner, reiterating the averment made in the writ petition submits that in view of the petitioner's best academic records, he had a legitimate expectation to get at least 60% marks but could not have secured 56 in Paper-II and 31 in Paper-IV out of 100 marks in each paper and in such circumstances, the petitioner as an examinee has a right to get the answer papers correctly re-evaluated to get proper marks according to his performance.
8. The learned counsel in support of his contention that Papers III and IV should be re-evaluated by the examiners approved by the University because of the compelling reasons, has placed reliance on a decision of this Court in Bismaya Mohanty and others v. Board of Secondary Education, Orissa and others', 1996 (I) O. L. R. 134 and in Arundhati Sahoo v. Board of Secondary Education, Orissa and another; 1996(1) O. L. R. 512. It is his further submission that the Apex Court in Civil Appeal No. 1362 of 1990 decided on 28-2-1996 in the case of Council of Higher Secondary Education v. Jasodhara Padhi has held that for compelling reasons, the High Court may direct for re-evaluation of the answer scripts and accordingly, in this case, the Court should direct re-evaluation.
9. In Bismaya Mohanty (supra), in a batch of writ petitions, this Court hold down certain guidelines to be followed by the examining authorities and it was held that no element of chance of luck should be introduced inasmuch as abence of provisions for re-evaluation cannot be shield for examiner to arbitrarily evaluate the answer script. In so holding this Court directed the Board of Secondary Education to take stock of the whole situation and block the loop-holes. On going through some answer scripts which contained objective type of answers, the Court called for reports from the Assistant Examiner and the Chief Examiner and some marginal differences having been found from the report, the Court passed certain directions to adopt the report of the Assistant Examiner and the Chief Examiner. In any event, a direction was given to follow certain guidelines enumerated therein to reduce the possibility and the scope of improper evaluation. Those were the cases where it was demonstrated from the objective type of questions and answers that there was some anomalies in the marks awarded and in that view of the matter, in expectional circumstances this Court directed for report from the Assistant Examiner and Chief Examiner and the reports revealed marginal differences, but the facts of that case are quite different from the petitioner's case inasmuch as no general proposition has been laid. In Arundhati Sahoo v. Board of Secondary Education (supra) this Court being satisfied from the answer papers and contents of the text books that there are/errors in evaluation, while taking note of the decision of the Apex Court in Council of Higher Secondary Education (supra) which we shall deal later directed for valuating of papers. However, the Court specifically observed that there is no inherent right of an examinee to get his answer paper revalued, but all the same, absence of provision for re-evaluation of answer papers of an examinee would not take away the jurisdiction of the High Court in directing re-evaluation in compelling circumstances. What is a 'compelling circumstance' or 'compelling reason' would depend upon the facts of each individual case and cannot be enumerated. This decision also would be of no assistance to the petitioner's case since the basis on which the petitioner claims re-evaluation is his own assessment and the performance in the examination and there is no allegation of proved misconduct or mala fides against the examiners or the University authorities or that the examiners who had examined the papers were incompetent to evaluate the answer papers.
10. Similarly, in Subrat Ghosh v. Council of Higher Secondary Education and another; A. I. R. 1993 Orissa 139, a Bench of this Court observed that the career of students, vital for them throughout their life, should not be dealt with lightly and that a sense of proper commitment and responsibility should govern the conduct of all persons who are charged with the duty of making evaluation of their answer papers and on the basis of the report of some examiners to whom answer papers are sent, the Court directed the Council to issue correct mark-sheets, Each individual case has to be considered in accordance with the facts peculiar to the case inasmuch as it has to be borne in mind that only in compelling Circumstances, a Court may direct re-evaluation and not as a matter of course, on the basis of the apprehension of the petitioner alone.
A reference has also been made to the judgment dated 25-1-2000 in Punam Sahoo v. Council of Higher Secondary Education in O.J.C. No. 12106 of 1999 to contend that this Court having taken the view that a candidate has a right to re-examination and accordingly the Council having been directed to make the system purposefully by authorising the subject Expert Committee to re-value where the Committee finds it necessary, the petitioner's paper should be directed to be revalued. At the out set it must be mentioned that the facts ofthat case are quite different inasmuch as the decision of the Apex Court in Council of Higher Secondary Education, Orissa and others v. Jashodhara Padhi's case and the case of Maharashtra State Board of Secondary and Higher Secondary Education and another v. Paritosh Bhupesh Kurmarsheth etc. etc., A. I. R. 1984 S. C. 1543 which we would be dealing with subsequently has not been noticed and considered. In the aforesaid case, it appears that the petitioner laid her claim on the basis of the observation of an expert while she was being shown the photo copies of the answer scripts inasmuch as on the basis of her own assessment of marks in Mathematics. However, in the facts and circumstances of that case the Court called for the answer scrips and got it scrutinised by an examiner. On the basis of such valuation, the Court having found that the petitioner deserves higher marks sent the reports of the examiners to the Council to consider those reports and take a final decision on revision of marks in Mathematics Papers-I and II. A decision is rendered in given facts of that case and each case has its own pecularities. How--ever, the facts of that case are quite distinguishable.
11. Whether in absence of any provision in the Statute or regulation, the Court would be justified in issuing direction for re-evaluation, came up for consideration in Council of Higher Secondary Education, Orissa and others v. Jashodhara Padhi's Civil Appeal No. 1862 of 1990, decided on 28-2-1990. The Apex Court held that in absence of Rule permitting re-evaluation, no examinee has a right to insist for re-evaluation, of his answer books. The examiners appointed by the examining authority are authorised to award marks in accordance with their judgment and discretions, and the marks awarded by the examiners acquire finality and no other authority has power to re-assess the same for the purpose of awarding marks. In such a case, the Court should not direct for re-evaluation of the answer books of an examinee unless there are compelling reasons for the same. It was emphasised that if there are allegations of mala fide which are founded on good grounds, or if it is found that the answer books of an examinee could not be assessed by the examiner, theCourt may direct for the re-evaluation of the answers, but that should be done only in rare cases where a very strong ground is made out for adopting such a course. The Apex Court observed that the examinees assessment of his own answer could not be a valid ground for a direction for re-evaluation as a candidate appearing in the examination is hardly a fit person for assessing the quality and value of his answers, and if an examinee's own assessment is taken into consideration in directing the re-evaluation of answer books, there will be chaos and no examination would attain finality. The Apex Court emphasised that in absence of allegations of mala fide against the examiners or any other compelling reasons, the High Court should have respected the rules which did not provide for re-evaluation of answers.
12. The Supreme Court as: long back as in 1984 in Maharashtra State Board of Secondary and Higher Secondary Education and another v. Paritosh Bhupesh Kurmarsheth etc. etc., A.I.R. 1984 Supreme Court 1543 has exhaustively dealt with the matter with regard to the right of an examinee for re-assessment or re-evaluation of his answer scripts. The Apex court in para-graph-16 of its judgment held :
'As already noticed xxx xxx These topics arecomprehensive enough to cover the prescription of theprocedure for finalising the results of the examinationbased on the evaluation of the answers of the candidateswho have appeared for the examinations, as well as thelaying down of the restrictive provisions relating toverification of marks, prohibition against disclosure andinspection of answer books and denial of any right orclaim for evaluation. We fail to see how it can be saidthat these are not matters pertaining to the conduct ofthe final examination and the publication of the resultsof such examination. Further, section 19 of the Act whichsets out the powers and duties of a Divisional Board laysdown in Clauses (f) and (g) that the Board shall have thepower and is under a duty to conduct in the area of itsjurisdiction the final examination on behalf of the StateBoard and to appoint paper-setters, examiners, etc. for conducting the final examination in the area of its jurisdiction, for evaluation of candidates' performances and for compiling and release of results in accordance with such instructions as the State Board may from time to time issue. It is clear that the conduct of the final examination and the evaluation of the candidates' performance and the compiling and release of results are all to be carried out by the Divisional Board in accordance with the instructions to be issued by the State Board from time to time. It is, therefore, manifest that a duty is cast on the State Board to formulate its policy as to how the evaluation of the performances of the candidates is to be made and by what procedure the results are to be finalised, compiled and released. In our opinion, it was perfectly within the competence of the Board, rather it was its plain duty to apply its mind and decide as matter of policy relating to the conduct of the examination as to whether disclosure and inspection of the answer books should be allowed to the candidates, whether and to what extent verification of the result should be permitted after the results have already been announced and whether any right to claim revaluation of the answer books should be recognised or provided for. All these are undoubtedly matters which have an intimate nexus with the objects and purposes of the enactment and are, therefore, within the ambit of the general power to make regulations conferred under sub-section (1) of section 36, xxx xxx'.
In paragraph-26 of the aforesaid judgment, the Apex Court observed :
'We are unable to agree with the further reason stated by the High Court that since 'every student has a right to receive fair play in examination and get appropriate marks matching his performance', it will be a denial of the right to such fair play if there is to be aprohibition on the right to demand revaluation andunless a right to revaluation is recognised and permittedthere is an infringement of rules of fair play. Whatconstitutes fair play depends upon the facts and circumstances relating to each particular given situation. If itis found that every possible precaution has been takenand all necessary safeguards provided to ensure that theanswer books inclusive of supplements are kept in safecustody so as to eliminate the danger of their beingtampered with and that the evaluation is done by theexaminers applying uniform standards with checks andcrosschecks at different stages and that measures fordetection of malpractice etc. have also been effectivelyadopted in such cases it will not be correct on the partof the Courts to strike down the provision prohibitingrevaluation on the ground that it violates the rules offair play. It is unfortunate that the High Court has notset out in detail in either of its two judgments theelaborate procedure laid down and followed by the Boardand the Divisional Boards relating to the conduct of theexaminations, the evaluation of the answer books andthe compilation and announcement of the results.
xxx xxx xxx Viewed against this background, we do not find it possible to agree with the views expressed by the High Court that the denial of the right to demand a revaluation constitutes a denial of fair play and is unreasonable. The Board is a very responsible body. The candidates have taken the examination with full awareness of the Provisions contained in the Regulations and in the declaration made in the form of application for admission to the examination they have solemnly stated that they fully agree to abide by the regulations issued by the Board. In the circumstances, when we find that all safeguards against errors and malpractices have been provided for, there cannot be said to be any denial offair play to the examinees by reason of the prohibition against asking for revaluation.'
13. A conspectus of the decisions and observations of the Apex Court in the aforesaid two judgments is that no examinee in any examination has a right to ask for revaluation. Absence of a right to re-evaluation recognised and permitted by the Rules or the regulations of the examining authority, cannot be construed as an infringement of the Rules of fair play. Only in exceptional cases, when allegations of mala fides founded on good grounds are made out, the Court may direct re-evaluation of answers. The assessment of a candidate his own performance in the examination cannot be a ground for the court to direct revaluation inasmuch as if on the basis of the examinee's assessment of the performance in examination is taken as a ground for directing revaluation, no examination would be, final. In case of allegations of mala fide proved or founded on valid reasons in rare cases, may constitute a compelling reasons for the court to direct revaluation and not otherwise. What constitute a compelling reason depends on the facts of the case peculiar to it. No general rule or guideline can be laid down for that.
14. In a case, where the answer paper is evaluated by an unqualified or incompetent examiner, it may, for example, be another compelling reason for the court to direct re-evaluation of a paper. In absence of any such ground, on the bald allegation of an examinee that his papers have not been evaluated properly and the marks awarded are not to his expectation, the Court cannot, as a matter of a course, direct for revaluation. If such would be consideration for revaluation, no examination, shall ever be final and complete. The disclosure or an inspection of answer papers on such bald allegations cannot be allowed to a candidate in any examination, to make out a case for re-evaluation. Such a procedure would be counter productive of rule of fair play since in that event any examinee can allege improper valuation requiring the examining authority to produce the answer script and once an answer script is produced and inspection or verification is allowed to a candidate to point outthe anomaly, then there would be stretched to such an extent which ultimately may lead to mending process of verification and re-evaluation. In any public examination like one that was conducted by the University in the present case, thousands of students appear at the examination and even if a small percentage out of those appearing at the examination, apply for revaluation on their own assessment of marks, it will come to few thousand and necessarily a few thousand man-hours would be required to manage the work of verification, inspection, re-checking, further-valuation and revision of results. Such a procedure would take a few months. It cannot be lost sight of that University conducts very many examinations like Pre-degree and Degree examinations in Arts, Science and Commerce, M.B.B.S., B.D.S. and Engineering, Post-graduate examination in various subjects, both technical and non-technical and the like, and so far as degree courses are concerned, they are conducted twice a year i. e, one Annual and another Supplementary examinations. The entire course of instruction and the examination is a time bound programme and if in each examination a procedure of disclosure and verification, verifications is allowed to a candidate, then no result shall ever become final as has been observed by the Apex Court in the case of Maharashtra State Board of Secondary and Higher Secondary Education and another (supra). It may be noted that the decision in Maharashtra State Board of Secondary Education's case has not been noticed in the earlier decisions of this Court which is relied on by the learned counsel for the petitioner to claim re-evaluation. In Punam Sahoo's case also, none of the decisions of the Apex Court has been noticed and considered.
15. It needs no emphasis that it is the function of the examining body comprised of experienced and expert teachers in the subjects, to formulate the policy as to how the evaluation of the performance as of the examinees is to be made and the procedure in which results are to be prepared and published.
In part IX Chapter-1 of the Orissa University First Statute, 1990, elaborate provisions with regard to the mannerof selection and appointment of examiners and the conduct of examination are set out. Statute 205 speaks about the Chief, Additional, Special and Assistant Examiners. According to this statute, the Chief, Additional, Special and Assistant Examiners are selected from amongst the Registered University Teachers/Regissered College Teachers with minimum experience of three years in respect of under Graduate Examinations and five years in respect of the Post-Graduate Examinations. The appointment of each case is for one year, subject to renewal. Assistant Examiners shall function under the general supervision and guidance of the Chief Examiners. Such appointments are made from the upto date list prepared subjectwise by respective Board of Studies, as contemplated under Statuate 205 (2) and (3) of the Statute, For each subject of examination, there is a Board of Conducting Examinations consisting of three examiners other than Assistant Examiners to ensure proper conduct of examination and for forwarding the result to the Controller of Examinations for approval and publication by the Syndicate as contemplated under Statute 207. Statute 207 may be quoted hereunder':
207. There shall be a Board of Conducting Examiner in each subject of each examination consisting of three examiners (other than Assistant Examiners) appointed to ensure proper conduct of the examinations and for forwarding the results to the Controller of Examinations for approval and publication by the Syndicate, The following shall be the duties of the Board of Conducting Examiners, namely :--
(i) to lay down the standard of valuation required in the subject/paper prior to the start of the valuation of papers after considering representations, if any, received from candidates regarding the question papers;
(ii) to value answer papers, dissertations, theses, etc. relating to their subject or branch of subjects, as the case may be;
(iii) to supervise the work of Chief. Additional Specialand Assistant Examiners connected therewith;
(iv) to set the papers for the practical examinations insuch subjects and papers wherever necessary;
(v) to make a report on the works of all examiners;
(vi) to make a report on the performance of the candidates;
(vii) to make a report on the cases of unfair means adopted by candidates specifically on the extent of use of unauthorised or incriminating materials recovered from them;
(viii) to pass results of the examination concerned; and
(ix) to perform such other duties, as may be assigned to them by the Syndicate or Vice-Chancellor.'
Statute 208 requires the Controller of Examinations to prepare a list showing those, who have been Question Paper Setters or Examiners during the preceding three years from among the list of registered college teachers and the list is placed before different Boards of Studies. The Boards of Studies consider the list and recommend three times the number of persons as are required as Question Paper Setters or Examiners for any particular question paper or examination for the purpose of appointment. The recommendation of the Board of Studies are scrutinised by the Controller of Examinations to find out, as to whether any teacher so recommended has incurred any disqualification under Statute 202 and as to whether he has been subjected to investigation or prosecution in a case under the Orissa Conduct of Examinations Act, 1988. The matter is then placed before the Examination Committee, a Committee consisting of the Vice Chancellor two members of the Syndicate and the Controller of Examinations, submitted by the Board of Studies and recommend the list to the Syndicate with or without modification. The recommendation of the Examination Committee then in placed before the Syndicate for ratification and approval under Statute 210. Thereafter, the Vice Chancellor is authorised to appoint examiners for specific papers from out of the list so prepared.
16. The conduct of examination is provided under Chapter 2 of Part-IX of the Statute. Thus, it would be seen that every care has been taken with regard to conduct of examination, evaluation of papers and publication of results and they are regulated by the Statute and every precaution has been taken to secure or hold free and fair examination and to avoid possible loopholes. It is not the function of the Court to sit over the judgment on the wisdom of academicians as to whether or not to allow verification and inspection of answer papers and consequently re-evaluation as has been held by the Apex Court in the aforesaid judgment. Thus, if the academic bodies like the University and its Academic Council have not thought it proper to allow inspection of answer papers to the examinee and for re-evaluation of the paper, then it is not the function of the Court to find fault with the system and decide as to what would have been wise or prudent by allowing such a procedure. But however, that cannot and should not be understood as a shield for the examiners or all involved in the process of a public examination for their negligence, carelessness or mala fide, only in exceptional cases, when the Court finds compelling reasons to direct disclosure and re-evaluation of any answer paper, such a direction may be warranted in peculiar facts and circumstances of that case. In the present case in hand, no ground whatsoever has been made out, calling for the intervention of the Court, by directing production of answer papers and re-evaluation thereof.
17. In that view of the matter, we find no merit in the writ petition which is accordingly, dismissed. In the circumstances, there shall be no order as to cost.
P.C. Naik, J.
I agree.
19. Writ petition dismissed.