The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.A No.510 of 2024 State Selection Board, represented through the Secretary,Department of Higher Education, Government of Odisha,Bhubaneswar, Dist- Khurda. -Versus- …Appellant. Surya Prasad Panda, aged about 27 years, son of SurendraKumar Panda, resident of Village-Charigharia, PO-Madhabnagar, PS/Dist- Bhadrak. …Respondent Advocate(s) appeared in the case: For the Appellant : Mr.Sameer Kumar Das, Advocate For Respondent : In-person CORAM: HON’BLE THE CHIEF JUSTICE HON’BLE MR. JUSTICE MURAHARI SRI RAMAN JUDGMENT 30.08.2024 ChakradhariSharan Singh, CJ. 1. The present intra-court appeal has been filed assailing an order dated 22.02.2024 passed by a learned Single Judge of this Court in W.A. No.510 of 2024 Page 1 of 19 W.P.(C) No.10537 of 2022 whereby the said writ petition has been disposed of with a direction to the State Selection Board (SSB) to conduct a viva-voce test specifically for the respondent, after revising his score, based on the key answers as suggested by a Committee of experts of Ravenshaw University, Cuttack, in respect of two multiple choice based Questions No.52 and 77, for the purpose of selection against the post of Lecturer in Chemistry in an aided degree College. 2. Pursuant to an open advertisement, an objective test, multiple choice question (MCQ) type, was held by the SSB for recruitment to the post of Lecturers in various subjects including Chemistry. After completion of the written test, the SSB had published key answers to the questions inviting objections thereon from the candidates latest by 27.09.2021. The respondent had put forth his objections within time to the answers so suggested against Questions No.40, 77, 86 and 99. On consideration by a Committee of experts constituted by the SSB of the objections submitted by different candidates, a set of final key answers was issued, and the result of the objective test was accordingly published. The name of the respondent did not figure in the list of successful candidates. W.A. No.510 of 2024 Page 2 of 19 3. The respondent, thereafter, filed a writ petition before this Court giving rise to W.P.(C) No.38578 of 2021, raising similar objection to the same key answers concerning Questions No.40, 77, 86 and 99, which was disposed of by a learned Single Judge of this Court by an order dated 17.12.2021 with a liberty to the respondent to make appropriate representation in this regard before the SSB. The SSB rejected respondent’s claim. 4. Thereafter, the respondent filed a writ petition registered as W.P.(C) No.10537 of 2022, this time raising objection to the key answers in respect of Questions No.40, 52, 73 and 77. Admittedly, the respondent had not raised any objection in respect of Questions No.52 and 73 within the stipulated time given by the SSB i.e., 27.09.2021. A learned Single Judge, by an order dated 04.08.2022 passed in W.P.(C) No.10537 of 2022 directed the SSB to set up an experts’ committee to examine the answers to the questions as suggested by the respondent which were stated to be correct with a further direction to submit the report of the committee to the Court in a sealed cover. Complying with the said order of this Court, a subject experts’ committee was convened by the SSB to examine the objections raised by the respondent. The objections raised by the respondent were examined and the answers as W.A. No.510 of 2024 Page 3 of 19 suggested by the respondent were not found to be correct. The committee opined that the key answers published by the SSB were the correct answers. However, based on the submissions advanced on behalf of the respondent that his answer sheet ought to have been examined by an independent experts’ committee and not by the committee of the experts constituted by the SSB, an order was passed in the said writ proceeding on 08.01.2024 directing the Registrar, Ravenshaw University to form a committee of three Experts in Chemistry and give a report to the Court about the correct answers to the Questions No.40, 52, 73 and 77. Pursuant to the said order, a committee was constituted whereafter Ravenshaw University produced a report before this Court that the respondent had correctly answered Questions No.52, 73 and 77 but was not awarded marks. Taking into account the report of the committee of Ravenshaw University, learned Single Judge noted in the impugned order in paragraph-5 as under:
Legal Reasoning
this Court in case of Sasmita Pattnaik and another v. State of Odisha W.A. No.510 of 2024 Page 6 of 19 and others (decided on 14.10.2020 in W.A. No.22 of 2020) has also been relied upon by learned counsel for the appellant to bolster his contention. He has also argued that change of the key answers at the instance of the respondent as directed by the learned Single Judge materially affects the entire process of selection. Learned Single Judge has committed an error while directing the SSB to accept the suggestions made by a committee of experts of Ravenshaw University for the sole purpose of re-evaluation of the respondent’s answer sheet. 8. The respondent in person, on the other hand, has argued that it is undisputed that the answers given by him to Questions No.73 and 77 were correct and those suggested in the key-answers published by the SSB were incorrect. Such being the admitted position, the learned Single Judge has rightly concluded that the respondent was getting four extra marks and, therefore, he was entitled to attend the viva-voce test. He accordingly submits that there is no illegality in the impugned order passed by the learned Single Judge. 9. We have carefully gone through the pleadings on record and have considered rival submissions made on behalf of the parties as noted above. W.A. No.510 of 2024 Page 7 of 19 10. In the facts and circumstances of the case following are the moot questions which emerge for this Court to answer while considering the challenge to the impugned order passed by the learned Single Judge :- (i) Whether the respondent himself was taking a chance by raising objections against the key answers of different questions, which he had not raised earlier before the SSB, within the stipulated time, and this significant aspect ought to have been taken into account by the learned Single Judge, while considering the respondent’s challenge to the key answers, particularly in an objective type (MCQ) test where the aspirants do take a chance to guess an answer and mark the answer without being confident about the correctness of the answer? (ii) Whether, exercising the power of judicial review, in the given facts and circumstances, learned Single Judge erred in directing Ravenshaw University to constitute a committee of experts to consider the correctness of the answers suggested by the respondent and those of the SSB in respect of Questions No.40, 52, 73 and 77? (iii) Whether in the absence of any provision for re-evaluation of the answersheet, learned Single Judge could have reassessed the W.A. No.510 of 2024 Page 8 of 19 merit of the respondent based on the opinion of the experts’ committee of Ravenshaw University? (iv) Whether, in any case, the case of the respondent could be singled out for issuance of direction to the SSB to conduct a special viva-voce test based on the answers found to have been correct by the committee constituted by Ravenshaw University in the backdrop of the fact that if accepted, the answers suggested by the committee of the University would have been applicable across all the applicants and thereby, could have materially affected the entire selection process? DISCUSSIONS AND CONCLUSION 11. It would be apt to consider the respondent’s conduct first in putting to challenge the answer keys as suggested by the SSB. As we have noted hereinabove, 27.09.2021 was the last date for submission of objections by the candidates to the key answers published by the SSB. The respondent had raised objections in respect of the answers to the Questions No.40, 77, 86 and 99. As his objections did not find favour, he filed W.P.(C) No.38578 of 2021 before this Court raising objections in respect of the same set of questions i.e. Questions No.40, 77, 86 and 99; which was disposed of with a liberty to the respondent to make a W.A. No.510 of 2024 Page 9 of 19 representation before the SSB. His claim was rejected by the SSB. Thereafter, he again filed a writ petition i.e. W.P.(C) No.10537 of 2022. This time, he raised objections in relation to Questions No.40, 52, 73 and 77. He, thus, apparently dropped in his second round of litigation his objections to Questions No.86 and 99 and raised a new objection in relation to Questions No.52 and 73. He had not raised objection in relation to Questions No.52 and 73 before the SSB before the cut-off date i.e. 27.09.2021 and before this Court in his pleadings in the earlier writ petition i.e. W.P.(C) No.38578 of 2021. Apparently thus the respondent was not sure about his own answers in four questions i.e. Questions No.86 and 99 for which he had initially raised his objection before the SSB and before this Court in the earlier round of litigation and Questions No.52 and 73 for which he raised the objection for the first time in the second round of litigation in the year 2022. The respondent was thus getting wiser with the lapse of time for challenging the key answers suggested by the SSB, the last date for which was 27.09.2021. This significant aspect, in our opinion, ought to have been taken into account by the learned Single Judge before directing constitution of an experts’ committee outside SSB at the instance of the respondent for re-determination of the keyanswers suggested by the W.A. No.510 of 2024 Page 10 of 19 SSB based on which the results were already published and appointments made. In our opinion, in the facts and circumstances of the case, the learned Single Judge ought not to have acceded to the respondent’s prayer for re-determination of the answer keys by an experts’ committee outside SSB. We reproduce hereinbelow paragraphs-2 to 5 of the order dated 08.01.2024 passed in W.P.(C) No.10537 of 2022:- “2. Pursuant to the order passed by this Court on 04.08.2022, Mr. S.K. Das, learned counsel appearing for the Selection Board produced the report of the Expert Committee in Court today in a sealed cover. The same was opened in presence of the learned counsel appearing for the Board and the Petitioner in Person. 3. From the report it is found that the Expert Committee has not found the objection of the Petitioner to the answers given to Question Nos. 40, 52, 73 & 77 as just and correct. 4. Petitioner who appeared in Person contended that the report so furnished by the Expert Committee is constituted by the Selection Board and in terms of order dt.04.08.2022 it should have been done by an independent Expert Committee, but not by a Committee constituted by the Board. 5. Considering the submission of Mr. Panda, this Court directs the Registrar, Ravenshaw University to form a Committee of 3 Experts in the subject Chemistry and give its report with regard to the correct answers of Question Nos.40, 52, 73 & 77.” W.A. No.510 of 2024 Page 11 of 19 12. It is apparent from abovementioned order that it was simply on a request made by the respondent that the opinion of the experts of the SSB’s should not be accepted and the respondent’s answer keys should be considered by an independent committee of experts, a direction was given by this Court for constitution of an experts committee by Ravenshaw University in the subject of Chemistry to give a report with regard to correctness of the answers of questions No.40, 52, 73 and 77. We reiterate that this order ought not to have been passed as the respondent had not raised any objection in respect of Questions No.52 and 73 before the SSB within the cut-off date i.e. 27.09.2021. In our considered view, it was impermissible for the respondent to have raised any objection in respect of any question for which he had not raised objection within the stipulated time i.e. 27.09.2021. 13. In our view, the respondent’s writ petition deserved to be dismissed on this ground alone because his objections were materially different on the point of correctness of the key answers before the cut- off date i.e. 27.09.2021, in the earlier writ petition i.e. W.P.(C) No.38578 of 2021 and W.P.(C) No.10537 of 2022, particularly in an objective test based on MCQ type. We answer the question No.(i) accordingly. W.A. No.510 of 2024 Page 12 of 19 14. It would now be apt for us to notice the Supreme Court’s decisions on the scope of judicial review under Article 226 of the Constitution of India in the matter of re-evaluation of answer sheets for scrutiny of an answer sheet as a matter of right. 15. In case of Ran Vijay Singh (supra), the Supreme Court has ruled that 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 the scrutiny only if it is demonstrated very clearly, without any “inferential process of reasoning or by a process of ratioalisation” and only in rare or exceptional cases that a material error has been committed. (See Para 30.2) In the present case, by an order dated 08.01.2024 passed in W.P.(C) No.10537 of 2022, the learned Single Judge directed for scrutiny of answer sheet by an experts committee of an outside agency, apparently disbelieving the report of the experts’ committee of the recruiting agency i.e. SSB. It cannot be culled out from the said order that the learned Single Judge had found any material error in the key answers, which was apparent, without any “inferential process of reasoning or by a process of ratioalisation”. No rare or W.A. No.510 of 2024 Page 13 of 19 exceptional circumstance was noticed by the learned Single Judge in the order dated 08.01.2024 warranting scrutiny of the key answers by an independent experts committee. 16. Noticeably, the Supreme Court in case of Ran Vijay Singh (supra) has further held 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 examining authority, the complete body of candidates suffers. All candidates suffer equally, though some might suffer more but that cannot be helped since mathematical precision is not always possible. 16.1. In case of Ran Vijay Singh (supra), the Supreme Court has held in paragraphs-31 and 32 as under:- “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. W.A. No.510 of 2024 Page 14 of 19 to 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 successfully conduct an equally great efforts examination. The enormity of the task might reveal some lapse at a later stage, but the court must consider the the internal checks and balances put 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.” in place by 17. On the point of re-evaluation of answer sheets, the Supreme Court in case of Pramod Kumar Srivastava v. Chairman, Bihar Public Service Commission, Patna reported in (2004) 6 SCC 714 has held in paragraphs-7 and 8 as under:- W.A. No.510 of 2024 Page 15 of 19 “7. We have heard the appellant (writ petitioner) in person and learned counsel for the respondents at considerable length. 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 totalling 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 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 v. ParitoshBhupeshkumarSheth [(1984) 4 SCC 27 : AIR 1984 SC 1543] . 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 the relevant rules, no candidate in W.A. No.510 of 2024 Page 16 of 19
Arguments
“5. Heard learned counsel appearing for the Parties. Considering the submission of the sole Opp. Party that Petitioner was not called to attend the viva-voce because of shortage of one (1) mark and now since the Petitioner is admittedly getting 4 extra mark, he is eligible and entitled to attend the viva-voce, this Court held the Petitioner entitled to face the interview. However, considering the submission of Mr. Das that the selection process has already been completed, this Court directs Opp. Party to conduct a viva voce test W.A. No.510 of 2024 Page 4 of 19 specifically for the present Petitioner through the same Board by giving clear 15 days notice to the Petitioner to attend the viva voce test. 5.1. However, it is observed that since because of the latches on the part of the Board, Petitioner could not appear the viva voce test when it was conducted in terms of the advertisement and he has suffered a lot for the last 2 ½ years, this Court directs the Board to conduct viva voce by taking a lenient view on the performance of the Petitioner and recommend his name to the Govt. for his appointment, if he is found otherwise eligible. The entire exercise be completed within a period of six (6) weeks from the date of receipt of this order as directed.” 5. Learned Single Judge accordingly disposed of the writ petition by the impugned order with the aforesaid direction and the observation that it was because of the laches on the part of the SSB, that the respondent could not appear for the viva-voce test, when it was conducted, in terms of the advertisement, and he had to suffer a lot for the last two and half years. 6. We have heard learned counsel appearing on behalf of the appellant and the respondent in person. 7. Learned counsel appearing on behalf of the appellant has submitted that the learned Single Judge erroneously took recourse to a re-evaluation of the key answers by a committee of experts outside the SSB. Such a course was contrary to the provision under Rule 9 of the W.A. No.510 of 2024 Page 5 of 19 Orissa Education (Selection Board for the State) Rules, 1992 which provides for constitution of an experts’ committee by the SSB, which consists of eminent Professors of high reputation from different institutions including Universities. He has placed reliance on the Supreme Court’s decision in case of Ran Vijay Singh v. State of Uttar Pradesh, reported in (2018) 2 SCC 357 to submit that the learned Single Judge ought not to have directed for re-evaluation of the individual score of the respondent. He has further argued, relying on the Supreme Court’s decision in the case of Dr. NTR University of Health Sciences v. Dr. Yerra Trinadh and others reported in 2022 SCC OnLine SC 1520, that in the absence of any provision for re-evaluation in the relevant rules, examinees have no right to claim or demand re- evaluation. Reliance has also been placed on Supreme Court’s decision in the case of Registrar General, High Court of Delhi v. Ravinder Singh reported in (2023) LiveLaw (SC) 553, wherein it has been reiterated that if the statutory provision prohibits re-evaluation, it cannot be ordered to be undertaken unless it is demonstrated very clearly without any inferential process of reasoning or a process of rationalisation that the key answers were patently wrong. A decision of
Decision
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 time. The is bound 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.” take to 18. The Supreme Court’s decisions in case of Ran Vijay Singh (supra) and Pramod Kumar Srivastava (supra) have been followed by the Supreme Court in case of Dr. NTR University of Health Sciences W.A. No.510 of 2024 Page 17 of 19 (supra). The answers to the question No.(ii) and (iii) lie in these decisions of the Supreme Court. 19. In the present case, in our view, in order to achieve transparency, the SSB had published the key answers inviting objections from the candidates. That was, thus, an opportunity to the candidates to assess their own answers. This step was apparently to achieve fairness and perfection in the process of selection based on an objective test, MCQ type. In our opinion, in such type of selection, the respondent’s plea for redetermination of key answers by an independent experts committee was not sustainable as he himself was not sure about the answers in respect of which he had raised earlier objections before the cut-off date, dropped some of them and raised new objections in the present writ application. 20. Further, most significantly, acceptance of the suggestions made by committee of experts of Ravenshaw University only for the respondent could not have been directed. Such approach is not in conformity with Articles 14 and 16 of the Constitution of India, as acceptance of such report would have had impacted the entire merit list. We answer question No.(iv) accordingly. W.A. No.510 of 2024 Page 18 of 19 21. Situated thus, we are of the view, for the aforesaid reasons, that the impugned order passed by the learned Single Judge cannot be sustained. This appeal is allowed. 22. The order dated 22.02.2024 passed in W.P.(C) No.10537 of 2022 is set aside. W.P.(C) No.10537 of 2022 is dismissed. 23. There shall be no order as to costs. (Chakradhari Sharan Singh) Chief Justice M.S. Raman, J. I agree. (M.S. Raman) Judge S. K. Guin/M. Panda Signature Not Verified Digitally Signed Signed by: MRUTYUNJAYA PANDA Designation: Secretary Reason: Authentication Location: High Court of Orissa, Cuttack Date: 30-Aug-2024 12:44:44 W.A. No.510 of 2024 Page 19 of 19