IN THE HIGH COURT OF GUJARAT AT AHMEDABAD WRIT PETITION (PIL) No. 63 of 2012 For Approval and Signature:
HONOURABLE THE ACTING CHIEF JUSTICE MR.BHASKAR BHATTACHARYA HONOURABLE MR.JUSTICE J.B.PARDIWALA ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of the judgment ?
4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ?
5 Whether it is to be circulated to the civil judge ?
========================================================= DHIRUBHAI VIRCHANDBHAI PATEL - PETITIONER Versus CHAIRMAN - RESPONDENT ========================================================= Appearance :
MR MIHIR THAKORE, SR.ADVOCATE with MR MANOJ N POPAT for PETITIONER. MR DIGANT M POPAT for PETITIONER.
MR AD OZA for RESPONDENT.
========================================================= CORAM :
HONOURABLE THE ACTING CHIEF JUSTICE MR.BHASKAR BHATTACHARYA and HONOURABLE MR.JUSTICE J.B.PARDIWALA Date : 07/05/2012 CAV JUDGMENT (Per : HONOURABLE MR.JUSTICE J.B.PARDIWALA) By way of this petition under Article 226 of the Constitution of India in the nature of a Public Interest Litigation, the petitioner, a teacher of Mathematics has prayed for issue of a writ of mandamus or any other appropriate writ or order directing the respondent to give full marks to the students for the questions having mistakes and errors, and a writ of mandamus or any other appropriate writ or order directing the respondent to forthwith take re-examination of the paper of Mathematics (Science Stream) of Std.XII examination conducted by the Gujarat Secondary and Higher Secondary Education Board.
Facts shortly stated be thus :
(1) The petitioner is a resident of Ahmedabad and is engaged in the field of education. The petitioner possesses Degree of B.Sc. with Chemistry and B.Ed. with Mathematics and Science. The petitioner has worked as a teacher of Mathematics in Science Stream of Std.XI and XII at B.R.Patel Nutan Fellowship High School between 1981 and 1987. According to the petitioner, he has written Practice Books of Mathematics (Science Stream) since 1983.
(2) It is the case of the petitioner that he has preferred this petition in public interest as the career of thousands of students who appeared in the Mathematics (Science Stream) examination of Std.XII conducted by the Gujarat Higher Secondary Education Board in the month of March 2012 is at stake. According to him, the question paper of Mathematics contained apparent mistakes and incorrect questions of 12 marks. According to the petitioner, there are apparent mistakes in Question Nos.9, 10, 17, 21, 33, 34 and 51. It is the case of the petitioner that following are the incorrect questions contained in the question paper of Mathematics (Science Stream) of Std.XII, which has been scanned from the xerox copy of the question paper produced on record :
(3) According to the petitioner, there are guidelines issued to the paper-setter for setting the paper of a particular subject for the purpose of Std.XII examination. The said guideline is also available to the students as it helps them and serves as a guide for preparation for such examination. Our attention has been drawn to the instructions issued by the Board to the paper- setter. To put them briefly they are as under :
“INSTRUCTION FOR THE PAPER-SETTER
1. Blue print is to be prepared according to the weightage given to each chapter and the question paper is to be set accordingly. The question paper is divided into 5 sections namely A, B, C, D and E.
2. The blue print given here is a modal the paper- setter can make changes internally without changing the weightage given to each chapter.
3. In the question paper, overall 30% internal option should be given in which B section 3 marks, C section 8 Marks, D section 9 Marks, E section 10 Marks. But in A section there will not be any internal option.
4. The entire question paper should be drawn from the textbook only but the paper-setter has the discretion to make necessary changes as per the difficulty level.
5. The paper-setter must plan keeping in mind the average students, the weightage of marks, and the time limitation.
6. Section A should contain multiple choice questions, which are simple, easy and the student can recall.
7. Section B should contain objective questions which can be answered in one word or one sentence.
8. Section C should contain such questions whose answer can be completed in maximum 4 steps.
9. Section D contains questions, answers to which are maximum in 6 steps.
10. Section E contains questions, the answers to which are maximum in 10 steps.
11. Avoid asking questions from higher level competitive examinations. Do not include problems mentioned and listed, which are only for reference.
12. In Maths-2, ask only limit and continuity from chapter 1 and 2.
13. In Chapter 7, for problems on Area, figure is not necessary.”
(4) It is the case of the petitioner that over and above the mistakes of 12 marks as referred to above, the question paper was also not as per the instructions set out in the guidelines referred to above to the extent of around 44 marks. It is also the case of the petitioner that Question No.52 was copied and picked up from the paper of 'All India Engineering Entrance Examination'. The petitioner has invited our attention to a detailed list of questions with such errors which are annexed and marked as Annexure-'D'.
(5) It is the case of the petitioner that for every question paper there is a 'key' prepared for the same. The key is the official answer to the question paper and is given as a reference to all the teachers who check the answer papers. It also gives instructions and guidelines for allotting marks. According to the petitioner, it is not possible to procure the key and, therefore, he requested the Court to direct the respondent to produce the same as from the key the mistakes and errors can be easily verified.
(6) It is also the case of the petitioner that all the newspapers in the State share the same feelings as that of the petitioner and also highlighted the mistakes and errors in the question paper of Mathematics (Science Stream).
(7) It is the case of the petitioner that inspite of such apparent mistakes and errors, the respondent – Board has not taken any steps to look into the matter in the interest of the students. What motivated the petitioner to file this petition in the nature of a Public Interest Litigation is a newspaper item published by newspapers that a 17 year old girl committed suicide as she did not perform well in her Std.XII Board Examination.
(8) According to the petitioner, the result of Std.XII examination is very important in the life of any student because it is the result of this particular examination which would decide the fate and the career of a student. According to the petitioner, it is not expected from respondent Board to frame question papers with ambiguities and errors which would ultimately confuse a student while answering the paper, and thereby, adversely affecting his performance.
It is in this background of the entire facts that the petitioner has thought fit to prefer this petition praying for the following reliefs :
“12.
(A) To admit this petition;
(B) To issue writ of mandamus or any other appropriate writ, order or direction directing the respondents to give full marks to the students qua the questions having mistakes and errors.
(C) In the alternative, to issue writ of mandamus or any other appropriate writ, order or direction directing the respondents to forthwith take re-examination for the paper of mathematics.
(D) During pendency and final hearing of this petition, be pleased to direct the respondents not to declare the results of the impugned examination and take re-examination forthwith.
(E) To pass such other and further orders as may be deemed fit in the facts and circumstances of the present case.”
Notice was issued to the respondent and in response to the notice issued, the Gujarat Secondary and Higher Secondary Education Board, through its Chairman, has appeared and opposed this petition by filing an affidavit-in-reply. In the affidavit-in-reply, the Board has taken the following stand :
(a) The petition in the nature of a Public Interest Litigation is not bonafide.
(b) Till date, the students who have appeared in Std.XII examination (Science Stream) or their parents have not made any grievance of whatsoever nature in this regard, nor have they made or preferred any representation to the Board with regard to the question paper of Mathematics.
(c) This petition has been preferred with an oblique motive as some teachers who are running tuition classes have raised this grievance as, according to such teachers, there is no clarity in the questions, as a result of which, the students were confused while answering the questions.
(d) The Board appointed a committee of six experts in the subject of Mathematics to look into this issue and the committee, after considering the question paper, opined that there is no substance in the grievance voiced by the teachers as regards the ambiguities in few questions.
(e) The Board noticed that there was an error apparent so far as Question No.51 is concerned and, therefore, took a decision that if students have attempted Question No.51 upto 3 steps, then such students would be given complete five marks. According to the Board, such decision was taken in the interest of the students at large because the Board was satisfied that there was a mistake so far as Question No.51 is concerned. However, so far as other questions are concerned, there was no mistake or any ambiguity as voiced by the petitioner.
On 30th March 2012, when this matter was taken up for hearing, we though fit to take assistance of experts in the field. We, therefore, suggested before the learned counsel for the parties to give names of experts to whom we can refer the matter. The parties gave the names of the following 3 experts unanimously :
1. Dr.Shri M.H.Vasavada, Former Head of the Department, Sardar Patel University, Vallabh Vidya Nagar.
2. Dr.Shri A.M.Vaidya, Retired Head of the Mathematics Department, Gujarat University.
3. Dr.Shri J.P.Sharma, Retired Professor, Mathematics Department, L.D.College of Engineering, Ahmedabad.
We, accordingly, constituted a committee of experts consisting of above three persons to give their opinion, whether those questions as indicated above are incorrectly framed. We also asked the committee to take into consideration the fact that those questions were asked to be solved by the students who appeared at Higher Secondary Examination. We also requested the committee to look into the questions at Annexure-'D' at p.26 as, according to the petitioner, such questions at Annexure-'D' at p.26 were also not in conformity with the guidelines framed by the Board.
Pursuant to our order dated 30th March 2012, the matter was taken up for further hearing on 16th April 2012. On 16th April 2012, the report of the committee of experts was made available to us in a sealed cover. The committee, in its report dated 7th April 2012, observed as under :
work.
Conclusion :
In questions 9 and 34, there are no errors. In questions 10, 17, 21 and 33, errors are of very minor nature which would not affect the students' performance. Question No.51, however is wrong and could confuse the students after some stage of
Recommendations :
1. If student has attempted question 33, with focus (-ae,o), he should be given credit for his attempt.
2. If a student has attempted question 51 (which is wrongly stated), he should be given full marks, if he has worked out the first two or three steps correctly.
Report on the lengthy solutions of the questions mentioned in Annex.D.
(The contents of the report as above have been scanned from the original report of the committee) The committee is of the opinion that solutions of some questions in Section C (33, 35, 37, 39 or 40) are lengthy. Also the solution of question No.44 is long. In rest of the questions, where the solutions have been claimed to be lengthy, we feel that some steps could have been skipped and the solutions made short. The committee also feels that in mathematics, the instructions for paper setting should better serve as guidelines rather than something to be strictly adhered to. Strict adherence to the number of steps as mentioned in the instructions may not always be possible.”
On perusing the report of the committee, we found that the experts were of the opinion that the errors which have been pointed out by the petitioner were of a very minor nature which would otherwise not affect the performance of the students. The committee also opined that Question No.51 was wrong and was of such a nature which could confuse a student after some stage of work. However, so far as Question No.51 is concerned, the Board itself fairly conceded that there was a mistake and a decision has been taken to give 5 marks to all the students who have attempted Question 51 upto three stages.
On 16th April 2012, we also orally requested Mr.A.D.Oza, learned counsel appearing for the respondent Board to give us a fair idea of some statistics in a sealed cover, whereby we may be able to know as to how many students who appeared for the Mathematics examination all over the State have attempted Question Nos. 9, 10, 17, 21, 33, 34 and 51 and what is the percentage of correct answer to such questions. This information was also made available by learned counsel Mr.Oza in a sealed cover, which we would not like to disclose in our judgment but, after perusing the data, we were convinced that the percentage of the questions attempted was very satisfactory and the percentage of the correct answers was also quite satisfactory. Mr.Oza, learned counsel appearing for the respondent Board also brought to our notice that in all 74,080 students appeared in the Mathematics examination of Std.XII (Science Stream). The break-up is as under :
Mr.Oza also brought to our notice the fact that the results are ready and will be declared on 9th or 10th May 2012. According to Mr.Oza, any interference by this Court at this stage will result in a complete deadlock and the entire process of declaration of result for Std.XII (Science Stream) examination will be affected.
I. Contentions on behalf of the petitioner :
Mr.Mihir Thakore, learned senior counsel appearing for the petitioner submitted that a bare perusal of the report of the committee of experts would suggest that there were mistakes in the questions which could have been easily avoided. According to Mr.Thakore, while setting a paper of such an important examination, and that too for a subject like Mathematics, due care is required to be taken by the Board as well as by the paper-setter to see that there is no ambiguity worth the name in the questions so as to create confusion in the mind of a student whose whole life is going to be shaped on the strength of result of such examination. Mr.Thakore submitted that in each and every question, according to the committee, there are loopholes and the committee has opined that such errors are of very minor nature. According to Mr.Thakore, each and every student may not be that bright or competent enough to immediately realize the mistake and proceed to answer the question after understanding the mistake. Three hours of the examination are very gruelling for any student, and during the course of three hours if the student gets himself confused due to apparent silly mistakes on the part of the Board, then it may affect his performance even while attempting other questions.
Mr.Thakore, therefore, submitted that this is a fit case where the Board should be asked to give full marks to the students so far as Question Nos. 9, 10, 17, 21, 33, 34 and 51 are concerned, or in the alternative, there must be re-examination so far as the paper of Mathematics (Science Stream) is conerned.
II. Contentions on behalf of the respondent – Board :
Mr.A.D.Oza, learned counsel appearing for the respondent – Board submitted that this petition in the nature of a Public Interest Litigation may not be entertained as it is not bonafide. According to Mr.Oza, not a single student out of 74,080 students who appeared have any grievance in this regard. If there would have been any serious grievance, then the parents of the students would have definitely knocked the doors of this Court. It is submitted by Mr.Oza that the entire process is over and now stage has come for declaration of the results. According to Mr.Oza, the result may be declared on 9th or 10th May 2012. Mr.Oza submitted that this Court, in exercise of powers under Article 226 of the Constitution of India, must be slow to enter into controversy which relates to an examination.
III. Analysis :
We have given our anxious thoughts and consideration to all the relevant aspects of the matter. We have tried our best to consider the problem as it relates to students and, therefore, we have look into the matter very closely. It is true that the issue is very complex and vexed. So far as this Court is concerned, as this Court has no expertise in the field and subject of Mathematics, this is precisely the reason why we had to take the assistance of experts and now since we have the opinion of experts, we have no hesitation in coming to the conclusion that this is not a case where the Board should be asked or directed to give full marks to all students who may have attempted the questions referred to above or also those who may not have attempted the questions. It is also not a case where the Board can be asked to conduct fresh examination so far as the paper of Mathematics is concerned.
Ordinarily, courts will be slow to enter into a controversy which relates to examinations. In the matter of examination like the present one, the Board must be trusted to hold the examinations in a fair and proper manner and interference by the court must be in the rarest of rare cases where the court is satisfied that the examination has been held in such a manner that it has resulted in arbitrary results so that the examination or the test held and the result declared has not resulted in the test of merit but has left much to the luck or chance of the candidates concerned. Such is not the case before us.
Having considered the matter threadbare in the interest of the students, more particularly after taking into consideration the opinion of the experts, we are unable to persuade ourselves to accept the contention of the learned counsel that full marks must be given to each and every student so far as questions with ambiguity are concerned. The opinion as expressed by the experts on the subject ordinarily should not be substituted by this Court while exercising its jurisdiction under Article 226 of the Constitution of India. This Court should not sit over the opinion of the expert body without proper material.
The law in this regard is no longer res-integra. It is now well- settled by various decisions of the Supreme Court that the findings of expert bodies in technical and scientific matters would not ordinarily be interfered with by courts in the exercise of their power under Art. 226 of the Constitution or by the Supreme Court under Art.136 or 32 of the Constitution. For this proposition, reliance can be placed on the decision of the Supreme Court in the case Systopic Laboratories (Pvt.) Ltd. vs. Dr. Prem Gupta & Ors. (1994) Suppl.(1) SCC 160. Paragraphs 19 and 20 of this decision clearly give the answer on the question whether the findings of expert body in technical and scientific matters can be interfered with by the Court either under Art.226 or under Art.
32 or 136 of the Constitution. Paragraphs 19 and 20 of the said decision read as under:-
“19. Having considered the submissions made by the learned counsel for the petitioners and the learned Additional Solicitor General in this regard, we must express our inability to make an assessment about the relative merits of the various studies and reports which have been placed before us. Such an evaluation is required to be done by the Central Government while exercising its powers under section 26-A of the Act on the basis of expert advice and the Act makes provision for obtaining such advice through the Board and the DCC.
“20. The learned counsel for the petitioners have urged that these studies and reports had been submitted on behalf of the petitioners and other manufacturers before the Sub-Committee of the DCC as well as the Experts Committee but there has been no proper consideration of the same by the experts as well as the DCC and the Board. In this context, it has been submitted that no medical expert in the field of clinical medicine in the treatment of asthma was associated in the committees and such experts alone could make a proper evaluation of the said studies. We find no substance in this contention. We have pursued the minutes of the meetings of the Board, the Sub- Committee of the DCC as well as the Experts Committee. The minutes show that the material that was submitted on behalf of the manufacturers of the drugs in question was examined by the members and it is not possible to hold that there has been no proper consideration of the said by the Experts Committee or the Sub-Committee of the DCC. The complaint that experts in clinical medicine were not associated with the Committee does not appear to be justified. The minutes of the meetings of the experts to consider the views of the affected manufacturers, who represented against the proposed withdrawal of certain formulations moving in the market, which were held on September 8, 1987, October 16/17, 1987 and January 15/16, 1989 show that among the members were included Dr. O.D. Gulati, Dean,CAM Medical College, Karansad and Dr.J.P. Wali, Assistant Professor of Medicine, AIIMS, New Delhi, Dr. M.Durairaj Consultant, Cardiologist, Director of Cardiology, Poona Hospital and Research Centre, Pune was also member of the Sub-Committee and had attended the meeting held on January 15/16, 1988. It cannot, therefore, be said that the medical experts in clinical medicine were not associated in the Experts Committee for evaluation of the material that was furnished by the manufacturers."
The role of statutory expert bodies on education and role of Courts are well defined by a simple rule. If it is a question of educational policy or an issue involving academic matter, the Courts keep their hands off. If any provision of law has to be interpreted, applied or enforced, with reference to or connection with education, courts will step in. In Dr J.P. Kulshreshtha v. Chancellor, Allahabad University, reported in (1980) 3 SCC 418, the Supreme Court observed:
“Judges must not rush in where even educationists fear to tread.. While there is no absolute bar, it is a rule of prudence that courts should hesitate to dislodge decisions of academic bodies.”
In Maharashtra State Board of Secondary and Higher Secondary Education v. Paritosh Bhupeshkumar Sheth, reported in (1984) 4 SCC 27 the Supreme Court has reiterated:-
“.... 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 forumlated by professional men possesing technical experitse and rich experience of actual day-today working of educational institutions and the departments controlling them.”
In the above view of the matter, the petitioner is not entitled to any reliefs from this Court in exercise of the powers under Article 226 of the Constitution of India. The petition being devoid of any merit, the same is accordingly rejected with no order as to costs.
However, before parting, we would like to sound a note of caution. We are of the view that, be it any subject not necessarily only Mathematics, the paper-setter is expected to set the paper very clear and precise without leaving any room for any ambiguity. We have not entertained this petition in the facts and circumstances of the case is a different thing, but that does not mean that silly mistakes like the one in the present case could always be overlooked on the reasoning that it is for the student to understand the mistake, and after understanding, proceed to answer the question accordingly. The Std.XII examination so far as the State of Gujarat is concerned, has proved to be a graveyard of many a talent. The three-hour examination shapes the entire life of the student. There is stiff competition amongst students to the extent of 0.5 or 1.0 percent when it comes to seeking admission in Medicine, Engineering, etc. Each and every student is not expected to immediately realize the apparent mistake, be it of a very minor nature. Some times, a student may get confused as a result of which he would definitely get nervous and that will have a lasting effect on the performance. If a student is not able to do fairly well in one subject it may take a very heavy toll even so far as other subjects are concerned, more particularly, for a student of a Science Stream. Mathematics is one such subject where a student would expect to secure high marks and if such impediments come in the way of a student, then it will definitely disturb the student.
What we want to convey to the respondent – Board is that such errors should never creep in any question paper. The question paper must be very very clear and correct without any room for doubt. The Board must take necessary steps henceforth to see that after the paper is set, it is being checked thoroughly so that if there is any error even of most minor nature, then the same may be corrected.
We are sure that henceforth there will be no complaint of any nature so far as errors or ambiguities in the question papers of Std.XII examination is concerned.
(Bhaskar Bhattacharya, Acting C.J.)
(J.B.Pardiwala, J.)
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