Ch.Deepika, D/O.Ch.Chandra Shekar, v. Director Of Government Examination, Andhra Pradesh,
HON'BLE SRI JUSTICE S.V. BHATT Writ Petition No.10237 of 2013 ORDER:
Heard Mr. Krishna Sumanth, for the petitioner and the Assistant Government Pleader for Education-respondents.
2. The petitioner prays for mandamus declaring the action of respondents 1 to 3 in not completing the exercise of re-evaluation/ reexamining the petitioner's answer sheet i.e., Method of Teaching Mathematics of the 2nd year TTC bearing Roll No.101302009 in pursuance of the petitioner's representation dated 14.03.2013, as illegal, arbitrary and unconstitutional.
3. The grievance of the petitioner is summarised in the abstract in representation dated 14.03.2013. For convenience, the same is extracted hereunder:
" It is submitted that after receiving the Xerox copy of the answer sheet I noticed the following irregularities in awarding marks has crept in which is apparent on the face of record.
Question No.
Nature of irregularity Marks Awarded Marks to be awarded Struck off the entire answer as wrong but entire answer is correct as per (a+b) 2 formula Entire answer is correct though it is evaluated as correct full marks not given Entire answer is correct though it is evaluated as correct no marks were given Nil Answer is correct and correct marks given Answer is correct but it is crossed as wrong answer 1 OR 2 Entire answer is correct evaluated as correct but marks were given less Answer is correct and correct marks were given as per my answer Entire answer is correct but it is crossed by the examiner as the answer is wrong Entire answer is correct but it is crossed by the examiner as the answer is wrong Entire answer is correct but it is partly crossed by the examiner and partly ticked by the examiner as correct Entire answer is correct marks awarded is also correct
Answer is partly correct but it is crossed as wrong answer by the examiner 1 or 2 I did not attended the answer I did not attended the answer I did not attended the answer Answer is correct but it is crossed as wrong answer by the examiner Answer is correct but it is crossed as wrong answer by the examiner Answer is correct but it is crossed as wrong answer by the examiner Answer is correct but it is crossed as wrong answer by the examiner Answer is correct but it is crossed as wrong answer by the examiner Did not answer the question Answer is correct but it is crossed as wrong answer by the examiner Answer is correct and correctly evaluated Answer is correct and correctly evaluated Answer is correct but it is crossed as wrong answer by the examiner Answer is correct and correctly evaluated
4. According to the petitioner, the request for re-evaluation is to ensure evaluation of answer scripts and if an advertent or inadvertent mistake has happened in the evaluation, when sufficient details are brought to the notice of the respondents, the complaint ought to be considered and a suitable decision taken and thereafter the answer script is to be evaluated. Instead of doing so, by referring to absence of rule for re-evaluation declining to re-evaluate the answer script which suffers from patent omission and commission amounts to arbitrary exercise of power by the respondents.
5. The learned counsel for the petitioner relies upon the decision in ' Raj esh Kumar & ot hers vs. St at e of Bihar & ot hers1', wherein the apex court held that 'the re-evaluation was and is a better option, in the facts and circumstances of the case'.
1 (2013) 4 SCC 690
6. He also relied on the decision in ' Dr.P.Kishore Kumar & ot hers vs. St at e of Andhra Pradesh, rep. by it s Secret ary2', wherein this court held that 'the legitimate expectation of a student is that the answers written are at least looked at and appreciated for evaluation. In the back ground of the illustration given above and the details furnished by petitioner in representation dated 14.03.2013, this Court is of the view that answers scripts are treated as evaluated. However, 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."
7. In the said case, this court referred to the judgment of the apex court in ' Cent ral Board of Secondary Educat ion vs. Adit ya Bandopadyaya and ot hers3' wherein it was held as follows: " In a philosophical and very wide sense, examining bodies can be said to act in a fiduciary capacity, with reference to students who participate in an examination, as a government does while governing its citizens or as the present generation does with reference to the future generation while preserving the environment.
But the words 'information available to a person in his fiduciary relationship' are used in section 8(1)(e) of RTI Act in its normal and well recognized sense, that is to refer to persons who act in a fiduciary capacity, with reference to a specific beneficiary or beneficiaries who are to be expected to be protected or benefited by the actions of the fiduciary - a trustee with reference to the beneficiary of the trust, a guardian with reference to a minor/ physically/ infirm/ mentally challenged, a parent with reference to a child, a lawyer or a chartered accountant with reference to a client, a doctor or nurse with reference to a patient, an agent with reference to a principal, a partner with reference to another partner, a director of a company with reference to a share-holder, an executor with reference to a legatee, a receiver with reference to the parties to a lis, an employer with reference to the confidential information relating to the employee, and an employee with reference to business dealings/ transaction of the employer.
We do not find that kind of fiduciary relationship between 33 the examining body and the examinee, with reference to the evaluated answer-books, that come into the custody of the examining body.
The duty of examining bodies is to subject the candidates who have completed a course of study or a period of training in accordance with its curricula, to a process of verification/ examination/ testing of their knowledge, ability or skill, or to ascertain whether they can be said to have 2 2016(6) ALT 408 3 (2011) 8 SCC 497
successfully completed or passed the course of study or training. Other specialized Examining Bodies may simply subject candidates to a process of verification by an examination, to find out whether such person is suitable for a particular post, job or assignment. An examining body, if it is a public authority entrusted with public functions, is required to act fairly, reasonably, uniformly and consistently for public good and in public interest.
This Court has explained the role of an examining body in regard to the process of holding examination in the context of examining whether it amounts to 'service' to a consumer, in Bihar School Examination Board vs.Suresh Prasad Sinha - (2009) 8 SCC 483, in the following manner: " The process of holding examinations, evaluating answer scripts, declaring results and issuing certificates are different stages of a single statutory noncommercial function. It is not possible to divide this function as partly statutory and partly administrative. When the Examination Board conducts an examination in discharge of its statutory function, it does not offer its "services" to any candidate. Nor does a 34 student who participates in the examination conducted by the Board, hires or avails of any service from the Board for a consideration.
On the other hand, a candidate who participates in the examination conducted by the Board, is a person who has undergone a course of study and who requests the Board to test him as to whether he has imbibed sufficient knowledge to be fit to be declared as having successfully completed the said course of education; and if so, determine his position or rank or competence vis-avis other examinees. The process is not therefore availment of a service by a student, but participation in a general examination conducted by the Board to ascertain whether he is eligible and fit to be considered as having successfully completed the secondary education course. The examination fee paid by the student is not the consideration for availment of any service, but the charge paid for the privilege of participation in the examination..........
The fact that in the course of conduct of the examination, or evaluation of answer-scripts, or furnishing of mark-books or certificates, there may be some negligence, omission or deficiency, does not convert the Board into a service provider for a consideration, nor convert the examinee into a consumer ........." It cannot therefore be said that the examining body is in a fiduciary relationship either with reference to the examinee who participates in the examination and whose answer-books are evaluated by the examining body. An evaluated answer book of an examinee is a combination of two different 'informations'. The first is the answers written by the examinee and second is the marks/ assessment by the examiner.
When an examinee seeks inspection of his evaluated answer-books or seeks a certified copy of the evaluated answerbook, the information sought by him is not really the answers he has written in the answer-books (which he already knows), nor the total marks assigned for the answers (which has been declared). What he really seeks is the information relating to the break-up of marks, that is, the specific marks assigned to each of his answers. When an examinee seeks 'information' by inspection/ certified copies of his answer-books, he knows the contents thereof being the author thereof.
xxxxx This takes us to the crucial issue of evaluation by the examiner. The examining body engages or employs hundreds of examiners
to do the evaluation of thousands of answer books. The question is whether the information relating to the 'evaluation' (that is assigning of marks) is held by the examining body in a fiduciary relationship. The examining bodies contend that even if fiduciary relationship does not exist with reference to the examinee, it exists with reference to the examiner who evaluates the answerbooks. On a careful examination we find that this contention has no merit.
On the other hand, when an answer-book is entrusted to the examiner for the purpose of evaluation, for the period the answer-book is in his custody and to the extent of the discharge of his functions relating to evaluation, the examiner is in the position of a fiduciary with reference to the examining body and he is barred from disclosing the contents of the answer-book or the result of evaluation of the answer-book to anyone other than the examining body. Once the examiner has evaluated the answer books, he ceases to have any interest in the evaluation done by him. He does not have any copy-right or proprietary right, or confidentiality right in regard to the evaluation. Therefore it cannot be said that the examining body holds the evaluated answer books in a fiduciary relationship, qua the examiner" .
8. Learned counsel for the petitioner relied upon the decision of the Apex court in ' Sahit i and ot hers vs. Chancellor, Dr. NTR Universit y of Healt h Sciences & ot hers4', wherein it was held as follows: " The plea that there is absence of specific provision enabling the Vice-Chancellor to order re-evaluation of the answer scripts and, therefore, the judgment impugned should not be interfered with, cannot be accepted. Re-evaluation of answer scripts in the absence of specific provision is perfectly legal and permissible."
9. Learned Assistant Government Pleader contends that in the absence of a rule enabling re-evaluation, this court cannot direct reevaluation of answer script of the petitioner.
10. I have perused the material available on record and also taken note of submissions of the learned counsel. The grievance of the petitioner is explained through representation dated 14.03.2013 and by referring to absence of a rule, the re-evaluation is not undertaken, let me keep at the back of the admitted circumstances the view of the 4 (2009) 1 SCC 599
Hon'ble Apex Court in 'Sahit i's case (supra) on evaluation, re-evaluation etc..
11. After perusing the representation, this court is of the view that a direction as prayed for to re-evaluate the answer script may not be issued. However, the 1st respondent with the administrative discretion, he has and academic experience gained over years, keeping in view the ratio laid down by the apex court in the decisions referred to above, takes a decision on the request of the petitioner and if the grievance merits consideration to meet ends of justice, nothing prevents the 1st respondent from disposing of the representation.
12. Hence, I am satisfied having regard to the peculiar fact situation of this case and particularly, as this court cannot sit as an appellate examination board on the grievance pointed out by the petitioner in the representation dated 14.03.2013, the writ petition is disposed of by directing the respondents 1 to 3 to consider and dispose of the representation in the light of the decisions referred to above, within four weeks from the date of receipt of a copy of this order. No order as to costs. Pending miscellaneous petitions if any in this writ petition shall stand dismissed in consequence. ____________ S.V.BHATT, J Date: 21.04.2017 BSS
HON'BLE SRI JUSTICE S.V. BHATT Writ Petition No.10237 of 2013 Date: 21.04.2017 BSS