Judgment:
Anil Kumar, J.
Rule
1. With the consent of the parties the writ petition is taken up for final disposal. The learned Counsel for the parties also contended that no other affidavits are to be filed by the parties.
2. The petitioner had appeared in the annual examination for Class XII in 2006 and he has sought re-evaluation of all his papers by an external examiner with random comparison of his answer books with the answer books of some of the successful candidates and he has also sought direction to respondents to hold interview test for admission to B-Tech, JMI, 2006 in case the petitioner is declared pass in Senior School Certificate Class XII Examination, 2006 after re-evaluation.
3. Brief facts to comprehend the controversy are that the petitioner appeared in the Senior School Certificate (Class XII) Examination 2006. On declaration of the result of the petitioner, he failed in Physics, Chemistry and Computer Science where he has been awarded 13, 15 and 11 marks respectively out of 70 marks in theory. Petitioner sought re-evaluation of all his answer books by any external examiner on the ground that he has strong reason to believe that he has been victimized by University official, the then Proctor, Shri Rocket Ibrahim, as the petitioner had shown dissatisfaction along with other students on out of syllabus questions in the Mathematics question paper for class XII examination in 2005.
4. The petitioner contended that he was selected for admission to class 11 in 2003 out of 8000 to 10000 candidates and he was one of the 200 selected candidates. After getting admission in 2003, the petitioner appeared in the annual examination of class 11 in 2004 and scored goods marks and took admission in class 12 in the same year, i.e., 2004.
5. It was asserted that he studied in a premier school of Patna, namely, Gyan Niketan, from class VI to X before qualifying the entrance test for admission to class 11 in Jamia Milia Islamia (JMI). The petitioner contended that he was also chosen for scholar batch comprising of forty bright and brilliant students of class XI on the strength of his performance in the entrance text to admission in class XI. Before appearing for annual examination in 2005, the petitioner had passed the pre-Board examination conducted by JMI. The petitioner appeared for class XII in March 2005, however, he was declared failed. In 2005, though he scored 27, 27 and 24 marks out of 30 marks in the practical examinations of Physics, Chemistry and Computer Science respectively, he scored only 14, 15 and 13 marks out of 70 marks in the theory papers of Physics, Chemistry and Computer Science respectively. According to him, all the students who appeared for class XII examination, 2005 were terribly upset with the question paper of Mathematics as some of the questions were out of syllabus and some of the students were even on the verge of walking out of the examination hall but were calmed down by the teachers, invigilators and the authorities. To protest against the Mathematics paper in which questions were given out of syllabus, the students decided to meet the Vice Chancellor and lodge a protest, however, the Proctor of JMI came to school hostel and tried to dissuade the students from meeting the Vice Chancellor. The petitioner contended that he spoke passionately about his and other students' plight whereupon he was threatened with dire consequences. As the petitioner had failed in three subjects, he could not even appear in Compartmental examination of class XII in the year 2005. Since the petitioner could not qualify the class XII in 2005, petitioner asserted that he went back to his native town, Patna, and attended a coaching institute, namely, Ramanujan School of Mathematics. Even for admission to the coaching institute, an entrance test was conducted and out of 1700 candidates, 500 were selected and the petitioner was one of them. The petitioner has given the details of the students from the coaching institute who were selected to IITs. According to him, he continuously studied in 2005 and during the early months of 2006 and filled the examination form for class XII as an ex-student and according to him though he did very well again, however, he has been failed in Physics, Chemistry and Computer Science as he has been awarded 13, 15 and 11 marks only out of 70 marks and consequently he is not even entitled to appear in the compartmental examination. According to him, the petitioner has been failed deliberately on account of deep conspiracy by the University official Along with Shri Rocket Ibrahim. He contended that he appeared in competitive examination for admission in an engineering college and he secured a rank of 7316 out of total candidates of 76327. The petitioner stated that he appeared in B. Tech Entrance Examination, 2006 and was called for interview. As the petitioner had failed in class 12 examination, 2006, representations were sent by the father of the petitioner for re-evaluation which was received in the office of Vice Chancellor but he was told that there was no provision for re-evaluation of answer books for the student of class XII as the provision of re-evaluation had been repealed. The petitioner pleaded that the repeal of the provision for re-evaluation of answer book of class XII has not been approved by the Academic Council/Executive Council and, thereforee, the petitioner is legally entitled for re-evaluation of his papers, but the re-evaluation has not been done. It was asserted that since the provisions of re-evaluation for papers/answer books of all other faculty and departments are still in force and absence of this provision for class XII is unreasonable and discriminatory.
6. The petitioner asserted that his success in B. Tech entrance test conducted by JMI and West Bengal Board of Examination shows the competence and capability of the petitioner and it also shows that the petitioner has become victim of deep conspiracy and in the circumstances he is entitled for re-evaluation of his answer books.
7. The learned Counsel for the petitioner also relied on : AIR2001Ori17 , Chitta Ranjan Mishra v. Utkal University and Ors. to contend that in the facts and circumstances there are compelling reasons and this Court must direct for re-evaluation of answer scripts.
8. The petition is contested by the respondent and an affidavit of Sh. S.M. Afzal, Registrar of respondent University, who also administers/manages Jamia school has been filed. It was contended that Jamia Schools vide Statute 23 of Jamia Milia Islamia Act, 1988 are to function as an autonomous unit with a board of management to monitor and supervise their working. The board of management consists of Vice Chancellor; Pro-Vice-Chancellor; Dean faculty of Education; Principal, Senior Secondary School; Headmaster, Middle school; Director, Nursery schools; Director, Balak Mata schools; one principal to be nominated by Vice Chancellors from among the principals of senior secondary schools of Delhi; Secretary, Central Board of Secondary Education; Assistant Registrar for schools. According to the respondents an academic monitoring committee was appointed to suggest and recommend reforms and improvement in the school sector and on extensive deliberations in the meeting held on 12.11.2003 and 19.11.2003 the rules and regulations of Jamia School Examinations were enacted de novo. The rules were framed to bring the entire examination system at par with the procedures being followed by the Central Board of Secondary Education. The rules which were framed were approved by the Vice Chancellor who is also the Chairman of the Board of Management (Schools) by an office order bearing No. RO-SB-479(AMC)/2003 dated 2.12.2003 which decision was also ratified by the Board of Management (Schools) in its meeting held on 30th June, 2004 vide resolution No. II Para XII.
9. According to the respondents now there is no provision for re-evaluation in Jamia Schools, however, a candidate has a right for verification of marks and there is also a provision for improvement of performance. The relevant Rule 13 relating to verification of marks is as under:
Verification of Marks obtained by a candidate in a subject:
(i) A candidate who has appeared at an examination conducted by the Board may apply to the controller of the examination, JMI for verification. Verification will be restricted to checking whether all the answers have been valuated and that there has been no mistake in the totaling for each question in that subject and that the marks have been transferred.
(ii) Correctly on the title page of the answer book and to the award list and whether the supplementary answer book(s) attached with the answer book mentioned by the candidate are intact. No re-evaluation of the answer book or supplementary answer book(s) shall be done.
(iii) A candidate shall not be entitled to refund of re-totaling fee.
(iv) The marks, on verification will be revised upward or downward, as per the actual marks obtained by the candidate in his/her answer book.
(v) The Controller of Examination will issue the revised marksheet in respect of such candidates after the previous statement of marks is returned by the candidate.
10. The respondents also relied on the academic record of the petitioner for 2004-05; 2005-06 and also the progress report for the year 2003-04 to contend that the record of the petitioner was poor. It was denied that merely because the petitioner had scored comparatively good marks in practical examination, the performance in theory will also commensurate with the performance in the practical examination. Regarding the alleged threat by the proctor of victimization, it was asserted that no such allegation was made after the petitioner failed in 2005 examination and it is only after petitioner again failed in June/July, 2006 that the allegation of foul play and victimization has been made and even in representation the animus against the Proctor is missing and no name or event has been alleged.
11. The respondents contended that answer book of Class XII were coded and their spot evaluation was done by the approved examiners. The coding is done by confidential coders nominated by the Vice Chancellor from outside the school preferably from the University sector and spot evaluation involves random distribution of answer sheets amongst 4-5 examiners who are mixture of internal/external examiners. Regarding the prayer of the petitioner to allow him for interview it is stated that since the petitioner has failed in Class 12th examination he is not eligible for B.Tech course and so he cannot be interviewed nor can be admitted to the said course.
12. The plea of the petitioner that the rules framed de-novo has not been approved by the academic council and the executive council, it was contended that the functioning of the school is regulated by Statute 23 and, thereforee, it is not mandatory that the rules relating to examinations have to be approved by the academic council/executive council which are the bodies of the University and not of the school as the powers for the smooth functioning of the school are vested in the Board of Management of the Schools.
13. In the circumstances the respondents contended that there are no compelling circumstances under which the Court should direct the respondents to re-evaluate the answer books of the petitioner especially as there is no rule for re-evaluation of the answer book and in the circumstances no direction should be given contrary to the rules of the respondents and the respondents should not be directed to violate their own rules.
14. The learned Counsel for the respondents have also relied on (2004) 13 SCC 383, Board of Secondary Education v. Pravas Ranjan Panda and Ors. to contend that where there are no rules for re-evaluation, the High Court should not direct for re-evaluation of answer books. Reliance was also placed on : AIR2004SC4116 , Pramod Kumar Srivastava v. Chairman, Bihar Public Service Commission, Patna and Ors. holding that in absence of any provision for re-evaluation of answer books in the relevant rules, no candidate in an examination has got any right whatsoever to claim or ask for re-evaluation of his answer books.
15. The petitioner has filed a rejoinder rebutting the pleas and contentions raised by the respondents in its counter affidavit and placed reliance on the marksheet issued for 2005 examination. According to the petitioner the marksheet provides for re-evaluation of answer books. The relevant stipulation regarding re-evaluation of answer books on the marksheet is as under:
Where ever is applicable, the application for re-evaluation (of theory paper(s) only) should be made within 15 days of the issue of mark sheets to the Dean/Deptt's office in case of Regular students and in case of private, within 15 days of the availability of mark sheets on the counter of the Office or the Controller of Examinations together with the original statement of marks issued to him/her. Students requesting for re-evaluation of their paper(s) are required to pay a fee of Rs. 150/- per paper. No refund will be made in any case. The award of marks by the re-evaluator shall be final.
16. I have heard the learned Counsels for the parties in detail and have also perused the petition, counter affidavit and the rejoinder filed by the parties. The respondents also produced all the answer books of the petitioner on 20th September, 2006, 6th October, 2006 and on 30th October, 2006. On perusal of the answer books it transpired that all the answers of the petitioner in all the papers had been evaluated and there had not been any mistake in totaling the marks awarded to the petitioner in different subjects. The answer books were also shown to the father of the petitioner who admitted the handwriting of his son on the answer books which were produced by the respondents. Consequently, there is no doubt about the answer books of the petitioner.
17. The learned Counsel for the petitioner greatly emphasized relying on Statute 25(1) of the Statute of the University, that ordinance provide for the conduct of examination, including the term of the office and manner of appointment and the duties of examining bodies, examiners and moderators. According to him the earlier rules applicable to the examination could only be repealed, on the draft of the academic council about the repeal being ratified by the executive council. Consideration of the statute of the respondent however, show that the plea of the learned Counsel for the petitioner, is not in consonance with the Jamia Milia Islamia Act, 1988 and the Statute of the University. Statute 23 of the Act stipulates the management and supervision by the Board of Management which is different from the executive council and the academic council. The deliberations and the decisions taken in the meeting of 12th November, 2003 and 19th November, 2003 for framing the de-novo rules and regulations, in order to make the rules consistent and at par with the procedure being followed by the Central Board of Secondary examination, thereforee, cannot be denied. These rules framed by the school of Management were approved by the Vice Chancellor on 2.12.2003 and the decision of the Vice Chancellor was also ratified by the Board of Management and in the circumstances the repeal of the earlier rules for the examination and applicability of de-novo rules for the year 2006 cannot be denied.
18. Rule 13 relating to verification of marks categorically stipulate that no re-evaluation of the answer book or supplementary answer book shall be done. If that be so the petitioner will not be entitled for any direction from this Court to the respondents to re-evaluate the answer books of the petitioner and thus violate their own rules. The petitioner has failed to show that he has a right to get his answer sheet re-evaluated. In the absence of any rule permitting or allowing a candidate to get the answer books re-evaluated externally and compared with the evaluation of successful candidates, this Court can not direct the authorities to re-evaluate the answer books of the petitioner and compare them with the answer books of successful candidates. A candidate cannot seek re-evaluation of his answer scripts merely on his own perception of good performance. Mere fact that a candidate may think that he has performed extremely well and yet not awarded marks which he rightly deserved, may not by itself justify the re-evaluation of the answer scripts. Reliance can be placed on Maharashtra State Board of Secondary and Higher Secondary Education and Anr. v. Paritosh Bhupeshkumar Sheth and Ors. : [1985]1SCR29 where the Supreme Court had held as under:.The process of evaluation of answer papers or of subsequent verification of marks does not attract the principle of natural justice since no decision making process which brings about adverse evil consequences to the examinees is involved. The principle of natural justice can not be extended beyond reasonable and rational limits and can not be carried to such absurd lengths as to make it necessary that candidates who have taken a public examination should be allowed to participate in the process of evaluation of their performance or to verify the correctness of the evaluation made by the examiners by themselves conducting an inspection of the answer books and determining whether there has been proper and fair evaluation of the answers by the examiners.
'...Any drawback in the policy incorporated in a rule or regulation will not render it ultra virus and the Court can not strike it down on the ground that in its opinion, it is not a wise or prudent policy, but is even a foolish one and that it will not really serve to effectuate the purpose of the Act.'
'....It is in public interest that the results of public examinations when published should have some finality attached to them. If inspection, verification in the presence of the candidates and revaluation are to be allowed as of right, it may lead to gross and indefinite uncertainty, particularly in regard to the relative ranking etc. of the candidates, besides leading to the utter confusion on account of the enormity of the labor and time involved in the process.'
'...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.'
19. In another matter the : AIR2004SC4116 , Pramod Kumar Srivastava v. Chairman, Bihar Public Service Commission and Ors. the Apex Court had set aside the order of the Learned Single Judge who had ordered re-evaluation of the answer scripts. The Supreme Court had re-affirmed the law laid down by the Court in Maharashtra State Board of Secondary and Higher Secondary Education and Another (supra). The Supreme Court had held:
The main question which arises for consideration is whether the learned Single Judge was justified in directing re-evaluation of the answer-book of the appellant in General Science paper. Under the relevant rules of the Commission, there is no provision wherein a candidate may be entitled to ask for re-evaluation of his answer-book. There is a provision for scrutiny only wherein the answer-books are seen for the purpose of checking whether all the answers given by a candidate have been examined and whether there has been any mistake in the totaling of marks of each question and noting them correctly on the first cover page of the answer-book. There is no dispute that after scrutiny no mistake was found in the marks awarded to the appellant in the General Science paper. In the absence of any provision for re-evaluation of answer-books in the relevant rules, no candidate in an examination has got any right whatsoever to claim or ask for re-evaluation of his marks. This question was examined in considerable detail in Maharashtra State Board of Secondary and Higher Secondary Education and Anr. v. Paritosh Bhupesh Kurmarsheth and Ors. . In this case, the relevant rules provided for verification (scrutiny of marks) on an application made to that effect by a candidate. Some of the students filed writ petitions praying that they may be allowed to inspect the answer-books and the Board be directed to conduct re-evaluation of such of the answer-books as the petitioners may demand after inspection. The High Court held that the rule providing for verification of marks gave an implied power to the examinees to demand a disclosure and inspection and also to seek re-evaluation of the answer-books. The judgment of the High Court was set aside and it was held that in absence of a specific provision conferring a right upon an examinee to have his answer-books re-evaluated, no such direction can be issued. There is no dispute that under the relevant rule of the Commission there is no provision entitling a candidate to' have his answer-books re-evaluated. In such a situation, the prayer made by the appellant in the writ petition was wholly untenable and the learned Single Judge had clearly erred in having the answer-book of the appellant re-evaluated.
8. Adopting such a course as was done by the learned Single Judge will give rise to practical problems. Many candidates may like to take a chance and pray for re-evaluation of their answer-books. Naturally, the Court will pass orders on different dates as and when writ petitions are filed. The Commission will have to then send the copies of individual candidates to examiners for re-evaluation which is bound to take time. The examination conducted by the Commission being a competitive examination, the declaration of final result will thus be unduly delayed and the vacancies will remain unfilled for a long time. What will happen if a candidate secures lesser marks in re-evaluation? He may come forward with a plea that the marks as originally awarded to him may be taken into consideration. The absence of clear rules on the subject may throw many problems and in the larger interest, they must be avoided.
9. Even otherwise, the manner in which the learned Single Judge had the answer-book of the appellant in General Science paper re-evaluated cannot be justified. The answer-book was not sent directly by the Court either to the Registrar of the Patna University or to the Principal of the Science College. A photocopy of the answer-book was handed-over to the standing counsel for the Patna University who returned the same to the Court after some time and a statement was made to the effect that the same had been examined by two teachers of Patna Science College. The names of the teachers were not even disclosed to the Court. The examination in question is a competitive examination where the comparative merit of a candidate has to be judged. It is, thereforee, absolutely necessary that a uniform standard is applied in examining the answer-books of all the candidates. It is the specific case of the Commission that in order to achieve such an objective, a centralized system of evaluation of answer-books is adopted wherein different examiners examine the answer-books on the basis of model answers prepared by the Head Examiner with the assistance of other examiners. It was pleaded in the Letters Patent Appeal preferred by the Commission and which fact has not been disputed that the model answer was not supplied to the two teachers of the Patna Science College. There can be a variation of standard in awarding marks by different examiners. The manner in which the answer-books were got evaluated, the marks awarded therein cannot be treated as sacrosanct and consequently the direction issued by the learned Single Judge to the Commission to treat the marks of the appellant in General Science paper as 63 cannot be justified.
20. In Chitta Ranjan Mishra (Supra) the candidate had approached the Court with the pleas that he was a brilliant student throughout and he had passed all examinations beginning from H.S.C till B.Com (Hons) in first class and in M.Com, Part I examination where he appeared as a non collegiate candidate, he has been awarded less than 50% marks which does not reflect his true merit keeping in view his good academic career as well as performance. thereforee his evaluation was improper, arbitrary and whimsical ignoring the guidelines framed as in the Central Valuation Manual. In this case the reliance was placed on the decision of the Apex Court in Civil Appeal No. 1362/1990 decided on 28.2.1996 in the case of Council of Higher Education v. Jasodhara Pandhi holding that for compelling reasons the High Court may direct for re-evaluation of answer scripts. Even in this case the Division Bench of Orissa High Court had held that no examinee to an examination has a right to ask for re-evaluation and absence of a right to re-evaluation, recognized and permitted by rules or regulations of the examining authority, cannot be construed as an infringement of fair play. It was held that the assessment of a candidate of his own performance in the examination cannot be a ground for the Court to direct re-evaluation. If the basis of examinee's assessment of the performance in examination is taken as a ground for directing re-evaluation, no examination would be final. Regarding compelling circumstances it was held that in a case where the answer paper is evaluated by an unqualified or incompetent examiner, it may be a compelling reason for the Court to direct re-evaluation of paper but merely on the bald allegation of an examinee that his papers have not been evaluated properly and the marks awarded are not to his expectations, the Court should not as a matter of course direct for re-evaluation.
21. The performance of petitioner during the examinations in 2003-04; 2004-05 and 2005-06 cannot be termed as extremely brilliant. The evaluation of the performance of the petitioner in the examination of respondent also cannot be castigated on the ground that the petitioner had qualified the written competitive examination of respondent for B.Tech Course and of West Bengal Board of Examination. In any case the answer books of the petitioner were perused by this Court and ex facie there does not appear to be anything wrong with the evaluation. Though a plea has been raised that on account of protest for out of syllabus questions in Mathematics papers in 2005, the threats were given by the Proctor, however, considering the plea of the respondents that coding of answer book is done by confidential coders who are nominated by the Vice Chancellor from outside the school preferably from the University sector and the spot-evaluation is done by random distribution of answer sheets to the internal and external examiner there does not seem to be any probability of anyone coming to know about the identity of the candidate from the answer book and influencing the evaluation. The plea of the respondent that no such allegations of malafide or deep rooted conspiracy were raised after the petitioner failed in 2005 and no subsequent events and names are being given in the representations made on behalf of the petitioner also negates the plea of the petitioner. There was no probability of interference in the evaluation of petitioner's answer books in the facts and circumstances. The allegation of the petitioner in the facts and circumstances are nothing but mere bald allegation and on account of his own perception of his performance, there are no compelling reasons to direct the respondents to violate their own rules and re-evaluate the answer books of the petitioner.
22. In Pravas Ranjan Panda (Supra) the Apex Court had set aside the order of the High Court directing re-evaluation of answer books of the examinees securing 90% or above marks holding that in absence of rules providing for re-evaluation such a direction is not sustainable.
23. In the totality of facts and circumstances, the inevitable inference is that the rules framed by the respondents are applicable to 2006 examination and the plea of the petitioner that the earlier rules have not been repealed is not sustainable. The reliance of the petitioner on the stipulation made on the mark sheet also does not reflect that re-evaluation of answer books for class 12th examination is permissible under the rules. The stipulation on the marks sheet contemplates that wherever the re-evaluation is applicable or permissible, then the procedure for getting the re-evaluation done. It does not show that in all case re-evaluation is permissible or that re-evaluation of the answer books of class 12th examination of the respondent school is permissible. In any case any stipulation contrary to the rules cannot be enforced and given effect to. The answer books of the petitioner has already been produced and seen and there is no apparent error and consequently there are no grounds for interference by this Court under Article 226 of Constitution of India nor any direction can be given by this Court to the respondents to violate their own rules.
24. Consequently, there is no merit in the writ petition and it is dismissed leaving the parties to bear their own costs.