A. Pasayat, J.

1. These applications involve a common grievance by the petitioners, each one of whom was a candidate in the Annual High School Certificate Examination, 1995 conducted by the Board of Secondary Education, Orissa (hereinafter referred to as the Board). Their grievance Is that their answer scripts in various papers have not been properly evaluated; and therefore, a fresh look at them is necessary. According to them, they had expected much higher marks and, were shocked to find that the marks awarded to them, as revealed from the mark-sheets supplied where absurdly less. In some cases, the Headmasters of the institutions were they prosecuted their studies have filed affidavits stating that the marks awarded do not reflect the true merit of the candidates, and there is something wrong in the process of evaluation of answers. It is submitted that the Board has prescribed some guidelines in the matter of evaluation which may provide guidelines for evaluation in the cases of objective questions, but where essay-type answers are evaluated, there is much scope for arbitrariness.

2. The Board has taken a stand that there is no scope for review and only re-addition of marks is permissible. In any event a Committee has been constituted pursuant to the direction of this Court which is to look into the grievances relating to re-addition of marks, non-evaluation of answers and allegation of fraud or tampering with the answer papers. It is highlighted that the answer scripts are assessed by experienced examiners, and certain percentage of answer scripts of candidates are first checked by the Chief Examiner to ensure that the evaluation is in order, and the guidelines provide the foundation with which the examiners are to act. Even step-wise award of marks has been provided to ensure fair-play.

3. It is not in dispute that the Regulations of the Board do not permit review, and as such no review of the answer-script can be done. It cannot be denied that an examiner has a right to fair-play and get appropriate marks according to his performance. What constitutes fair-play depends upon the facts and circumstances relating to each particular given situation. If it is found that every possible precaution has been taken and all necessary safeguards provided to ensure that the answer scripts inclusive of supplements are kept in safe custody so as to eliminate the danger of their being tampered with and that the evaluation is done by the examiners applying uniform standards with checks and cross-checks at different stages, and that measures for detection of malpractice has also been effectively adopted in such cases it would not be proper for the Court to interfere.

4. According to the Board all necessary steps in respect of aforesaid aspects have been taken. As observed by the apex Court in Maharashtra State Board of Secondary and Higher Secondary Education and Anr. v. Paritosh Bhupesh Kurmarsheth. etc. etc. , it is in the 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 utter confusion on account of the enormity of the labour 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. It would be wholly wrong for the Court to make a pedantic and purely idealistic approach to the problems of this nature, isolated from the actual realities and grass root problems involved in the working of the system and unmindful of the consequences which would emanate if a purely idealistic view as opposed to a pragmatic one were to be propounded, in the above premises, it is to be considered how far the Board has assured a zero defect system of evaluation, or a system which is almost fool-proof.

5. Award of marks by an Examiner is to be fair, and considering the fact that revaluation is not permissible under the Statute, the Examiner has to be careful, cautious and has a duty to ensure that the answers are properly evaluated. No element of chance or luck should be introduced. An examination is a stepping-stone on the career advancement of a student. Absence of a provision for revaluation cannot be a shield for the Examiner to arbitrarily evaluate the answer script. That would be against the very concept for which revaluation is impermissible.

6. The learned counsel for the Board has stated that due and proper care is taken in the matter of selection of Examiners. Procedure followed by the Board was stated to be as follows :

Names of teachers teaching different subjects in top two classes are obtained from the schools in a prescribed form named Teachers Index Form. The data supplied by the schools in the Teachers Index Form are entered in the Computer. Circle-wise/subject-wise seniority list of Chief Examiners/Assistant Examiners/Scrutinisers is prepared. After the Unit Chart of the valuation centre is finalised, allotment of Chief Examiner Asst. Examiner/Scrutiniser is made by the Computer basing on the guidelines framed by the Examination Committee, keeping in view the distance of schools from the valuation centre. After selection of Examiners, the Computer print of the subject-wise and Unit-wise list of Chief Examiners/Asst. Examiners and Scrutinisers is finalised, and thereafter the appointment orders are issued. The criteria for selection of Chief Examiners/Asst. Examiners/Scrutinisers for Annual H. S. C. Examination, 1S95 were fixed as follows :

(i) Minimum teaching experience for Chief Examiners and Asst. Examiners is 25 years and 5 years respectively,

(ii) Chief Examiners are appointed on rotation and Asst. Examiners on seniority basis.

(iii) In case of shortage, the experience restriction can be relaxed.

(iv) Scrutinisers are appointed from among the subject-teachers with less than five years of teaching experience but in case of third language (Sanskrit and Hindi) they shall be selected from other subjects.

A scheme of central valuation was introduced. Fifteen Examiners were appointed per Unit. in different subjects different units were fixed. The Examination Committee has also issued general instruction providing the manner for central valuation. Different duties were entrusted to different functionaries. The duties and responsibilities of Chief Examiners/Assistant Examiner/Scrutinisers were also prescribed. Learned counsel for the Board filed a copy of the Manual for central valuation to indicate the details.

7. In Chapter V which deals with duties and responsibilities of Chief Examiners, Assistant Examiners and Scrutinisers, in serial 13 it has been provided that all instructions as to the valuation according to the scheme of valuation, filling up mark foils, maintenance of documents must be adhered to. So far as duties of Assistant Examiners are concerned, it has been specifically provided that they should carefully follow the scheme of valuation while valuing the answer papers. In case of doubts, they should refer to the Chief Examiner. It has also been provided that the Examiners in awarding marks shall take the correctness of the language of the answer into account and consider whether the answers indicate an intelligent appreciation of the subject or is merely the result of unintelligent memory work.

So far duties of Chief Examiners are concerned, it is provided that they should have a full discussion on the question and scheme of valuation with the Assistant Examiners before actual valuation starts. It is the duty of Chief Examiner to see that the Assistant Examiners value the papers according to the Scheme of Valuation and other instructions. They shall carefully examine ail the answers papers carrying fail marks upon 15% shortage and also papers securing very high mark above 90% in Mathematics and 75% in all other subjects. They are also required to examine minimum 2 specimen copies of each examiner on the first day and to re-examine 5% of the answer papers allotted to them during the period of valuation. They are required to pick up answer papers at random for examination from among the papers already valued by the Assistant Examiners. Besides re-examining. they should make some test check of the papers scrutinised by the scrutinisers to see whether the scrutinisers are doing their duties correctly.

8. It has to be ensured that the Examiners who make the valuation of answer papers are really equipped for the job. The paramount consideration in such cases is the ability of the Examiner. The Board has bounden duty to select such persons as Examiners who have the capacity, capability to make valuation and they should be really equipped for the job. Otherwise, the very purpose of evaluation of answer papers would be frustrated. Nothing should be left to show even an apprehension about lack of fair assessment. It is true that valuation of two persons cannot be equal on golden scales, but wide variation would affect credibility of the system of valuation. If for the same answer one candidate gets higher marks than another that would be arbitrary. As indicated above, the scope for interference in matters of valuation of answer papers is very limited. For compelling reasons and apparent infirmity in valuation, the Court can step in. It is stated by the learned counsel for the Board that in respect of objective questions, specific answers have been indicated, and the steps for evaluating an answer have also been clearly spelt out in the guidelines provided. Care should be taken to see that the Examiners who have been appointed for a particular subject belong to the same faculty. It would be a mockery of the system of valuation of a teacher belonging to Arts stream is asked to evaluate answer papers of Science stream. It may be that a teacher had Physics, Chemistry or Biology at the Intermediate Level, but at Graduation stage he had special paper in Zoology. To ask such a teacher to evaluate Botany paper would not be proper. Similarly in the case of a teacher having Mathematics in Intermediate Level while he took his higher studies in Physics, or Chemistry, or Botany at the Graduation Level, evaluation of answer paper in Mathematics by him would not be proper. May be that he has working knowledge in the subject, but the valuation should be done by an Examiner who is wel - equipped in the subject. That would rule out the chance of variation or improper valuation. Board authorities should ensure that such anomalous situations as pointed out above do not occur. Additionally steps should be taken for assessing the capacity of a teacher before he is appointed as an Examiner. For this purpose, the Board may constitute a Body of Experts to interview the persons who intend to be appointed as Examiners. This process is certainly time-consuming, but it would further the ends for which the examinations are held. It was accepted by learned counsel for the Board that the minimum experience of a teacher, which is considered for appointment as an Examiner is five years. We feel the same to be rather inadequate. It would be appropriate if persons with long experience, for example, minimum ten years are taken into the zone of consideration. Such length of experience coupled with assessment of capacity by the Body of Experts would to a great extent eliminate the possibility of wrong persons being appointed as Exeminers. The Chief Examiner is supposed to act as a safety-valve in the matter of proper assessment. As indicated above, two specimen copies of each Examiner on the first day, and 5% of the answer papers allotted to them during the period of valuation are examined by the Chief Examiner. The answer scripts are to be taken up at random. They are supposed to be representatives in character. However, putting a ceiling of 5% in some cases may not be adequate. For example, the Chief Examiner may find that in majority of the cases the answer scripts picked up by him at random, the evaluation has not been properly done, he may rectify the defect in respect of those papers. But the other answer papers evaluated in the erroneous manner shall continue to have the defect unrectified. In such cases, the Chief Examiner should be given liberty of examining papers beyond the prescribed 5% after intimation to the Board about the necessity to do so in case the contingency arises he may examine all the papers of the concerned subject in his charge.

9. It is accepted by the learned counsel for the parties that there may not be any difficulty in following the scheme of valuation so far as the objective questions are concerned, and in respect of essay-type questions or questions needing elaborate answers no definite scheme can be provided for. Though no straitjacket guidelines can be provided for in such cases, yet some mode may be evoloved by which parity of evaluation can be maintained. For this purpose, the Examination Committee which is the nodal body can indicate broad guidelines to the Chief Examiners collectively to evolve the scheme of valua-ation. The Chief Examiners shall then pass on the details to the individual examiner. It is true that no fool-proof system can be introduced. But by adopting remedial steps the possibility of erroneous evaluation can be weeded out. Steps as indicated above are some of the steps in that direction. The Board may also appoint an Expert Body consisting of eminent educationalists, and persons with proven ability in the matter of evaluation of papers to formulate guidelines for the purpose of evaluation.

10. Large number of writ applications filed every year making grievance of improper valuation create an alarming situation. In a welfare State education ocupies a very high position. Therefore, the Board has a bounden duty to take stock of the whole situation and block the loopholes. It is sumitted that the Committee which was constituted pursuant to the direction given by this Court in Been Dei v. Board of Secondary Education. Orissa (OJC No. 7051 of 1992 disposed of on 2-11-1932) is serving a very useful purpose. The said Committee shall, till an alternative arrangement is made, continue to function as directed in the aforesaid case.

11. One thing which cannot be lost sight of is the marginal difference of marks which decide the placement of candidates in the merit list. We find that the Chief Examiners have been given power to carefully examine the answer - scripts carrying fail marks upon 15% shortage, and papers securing very high marks above 90% in Mathematics and 75% in all other subjects. To eliminate the possibility of injustice on account of marginal variation in marks, we feel that after the answer scripts and the mark-foils are received back by the Board, it shall find out the highest marks secured by a candidate. By way of illustration, we may take it to be 650. Let a Committee of three Chief Examiners examine all papers of candidates securing marks 636 or above. - Their papers shall be independently examined and the average of marks of three Chief Examiners shall be taken to be the marks secured by the concerned candidate. However, in case difference of marks between two Chief Examiners exceeds 5 in a papers, it shall be sent to another Chief Examiner, whose opinion shall be final- in case the marks given by the fourth Examiner is less than the average of other three, the average marks shall prevail. It shall be ensured by the Board authorities that a Chief Examiner does not belong to the school to which the candidate belongs. All possible care and caution should be taken to keep the identity of the candidate and the school secret.

12. We shall now take up the individual cases.

OJC No. 4597 of 1995 has been filed by ten candidates jointly. Untrammelled by the controversy whether such a joint writ application is maintainable, we have gone through the answer scripts to find out if there is any patent mistake in evaluation keeping in view the limitations indicated by the apex Court in Council of Higher Secondary Education, Orissa and Ors. v. Yasodhara Padhi (Civil Appeal No. 1362 of 1990 disposed of on 28-2-1990). Reports were called for earlier by the Bench hearing the petitions from various Assistant Examiners and Chief Examiners. We have also gone through their reports.

So far as subject English is concerned, in question No. 8 the candidates were required to re-write the sentences following the instruction given in the bracket. Sub-question (v) of the said question read as follows :

"(v) His disease is..................(fill in the blank with the word derivative from cure)"

The instructions for evaluation were to the following effect.

"8(v) curable/incurable"

We find that Bismaya Mohanty petitioner in OJC No. 4582 of 1995. has been awarded a mark though he has answered it as uncurable Similarly Gayatri Monanty, one of the petitioners in OJC No. 4597 of 1995 has given the answer as "incureable and has bean awarded a mark. Strangely Aparna Aparajita Mohanty, one of the petitioners in OJC No. 4597 of 1995 though has indicated the answer to be incurable she has not been awarded any mark.

13. From the model answers, we find that in respert of question No. 10 (ix), and question No. 11(i) the instruction was to award one mark irrespective of whether the candidate has attempted the same or not because of faulty nature of the question.

So far as Niladri Bihari Mohanty. one of the petitioners in OJC No. 4597 of 1995 is concerned, we find that in respect of question No. 10, he has been awarded the mark for question 10(ix). In that view of the matter, there was no scope for given him an additional mark. But that has been done and instead of 8 marks which he was to get, inclusive of the mark ailotable for question No. 10(ix). he has been given 9 marks. To put it differently he had answered two of the ten questions wrongly. Therefore, he was to get 8 marks. However so far as the marks awarded to candidates by mistake is concerned, we do not feel it necessary to give direction for reduction of marks. So far as Aparna Aparajita Mohanty is concerned, she is entitled to one mark more in English.

So far as Jyotikanta Dwibedy, one of the petitioners in OJC No. 4597 of 1995 is concerned, he has secured 46 marks in Geography, but the mark-sheet annexed to the writ application shows that he has been given 41 marks. He is, therefore, entitled to get 5 marks more in that paper.

14. There is no scope for any mistake in evaluation so far as objective type questions are concerned. In view of the allegation of improper marking in respect of those questions also, we verified the answer scripts of the petitioners with reference to model answers in respect of objective questions to test the correctness of assertions. We find that the answers have been properly evaluated. The corrected mark-sheets are to be issued forthwith by the Board to concerned candidates.

The writ applications are disposed of accordingly.

P.C. Naik, J.

15. While I am in complete agreement with my learned brother, I would like to add a few words.

The increase in the number of petitions alleging improper valuation is an indication of the growing dissatisfaction in the examinees about the system of valuation. These petitions are mostly on the ground that answer papers have not been properly evaluated. However, in the absence of any provisions relating to revaluation the limited relief which is granted is a direction for re-addition of marks by a Committee which also does not seem to satisfy the examinees, because the number of petitions has not decreased. On an earlier occasion, this Court had issued direction for constituting a Committee to look into the grievances and we are informed that the Committee is serving a useful purpose. Nevertheless a large number of petitions continue to be filed before this Court. Many petitions are also filed complaining about issuance of wrong mark-sheets and delayed/wrong" publication of results. Many a time, the grievances of the petitioners have been found genuine and the mistakes have been attributed to a "Computer" by the authorities forgetting that in front of every computer there is a man who mans it and the computer merely reproduces what is fed. The fault, therefore, is really of the person manning the computer and not that of the computer. Complaints of this nature are to be reduced. What is, therefore, necessary for the concerned authorities is to take steps to see that the person manning the computer is competent, careful and dedicated. This will do away with the alleged computer mistakes.

16. As regards the system of valuation, no doubt, the Board appears to be taking all possible care to see that it is done in a fair manner, but if it has to be fair, the people involved in valuation have to be fair, knowledgeable and experienced. For this a proper screening is necessary and if the Board takes a little more care and a little stricter attitude in selection of Chief Examiners/Assistant Examiners/Scrutinisers, the complaints regarding improper valuation. if not completely, may be considerably reduced. Brother Pasayat, J. has pointed out some measures on the aspect of appointment of Chief Examiners/Examiners/Scrutinisers and the method of evaluation. I am hopeful that if these directions are implemented, they may prove beneficial to the examines and the Board alike and revive the confidence of the examinees in the system of evaluation of answer papers.