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Judgment
V.A. Mohta, J.—This is a somewhat unusual matter. Not because the lis is between a teacher and a taught. We are by now used to this specie of litigation which even in the known past was very rare and far in between. It is often found that the result of examination is vitiated on account of unfair means adopted by the examinees. Unusualness of this matter lies in an examinee seeking to quash the result of her examination on account of motivated unfair assessment of her performance in a practical examination made by her teacher.
Modern educational system in all advanced countries increasingly attaches considerable importance to the practicals, underlined idea being to bring the sutdents into direct personal contact with the tutor by forming smaller groups or otherwise so that personal attention can be given while coaching them and the education is more effective and the assessment of their merit can be made more real. With a view to encourage students to do continuous study throughout the course, one way is to officially allot some percentage of marks for such work by those who have opportunity to personally watch a student from a close range. To qualify for an examination certain amount of practical work is made compulsory. This record, which in many cases is called "journal", has to be maintained by the students. The journal is scrutinised by the concerned teachers from time to time, and those students who have completed the course of experiments in practicals as prescribed are issued a completion certificate. Sometimes even marks are allotted for the said journal. That way the ''percentage of marks allotted to the practical examinations is comparatively smaller, but even a fraction of mark matters specially at a higher level where there is tough competition for admission to certain coveted courses, such as Engineering, Medical, Business Management, etc. Students in general and meritorious students in particular appearing for such qualifying examinations leave no stone unturned to secure as high a place as is possible in the merit list. Practical examinations are conducted at institutional level and for that internal as well as external examiners are appointed. Internal examiner is from the Institution imparting education and the external examiner is from outside the Institution. By the very nature of the things the internal examiner knows the students better. Discretion of an examiner plays a decisive role in the assessment of performance of the students in the examination and it is almost unquestionable. The students, their guardians and so also the examiners all know this. There is all out effort to keep the teacher who is likely to be an examiner on the right side. After all he can even refuse or delay issuance of a certificate on completion of practical work. Some teachers exploit this situation. Conducting private coaching class by charging tuition fees is one such method. Such teachers expect the students to join the class. Some discerning students know the disadvantage of not joining the class and those who do not are made known generally in a j discrete way and exceptionally in a crude way as was done in the instant case, if an examinee''s version is to be believed
Ku. Joyti Lonkar -- the petitioner is '' that examinee. Shri K.D. Singh -- the third respondent is that examiner. Joyti was a regular student of Bharat Junior College of Science, Hinganghat, District Wardha, ''studying in XII class in the academic session 1985-86. Singh was alone lecturer in Physics in the said college and invariably used to be appointed as an internal examiner for the XII standard practical examination in that subject conducted by the Maharashtra Board of Secondaryand Higher Secondary Certificate Examination, Nagpur Division, Nagpur --the first respondent. Jyoti is a brilliant student.
Her following record of performance in various examinations in the past speaks for itself: --
(a) First in IX class examination conducted by the School with 80% marks in total.
(b) First in the School in X class Examination conducted by the Board with 90% marks in Science group of subjects.
(c) 85% marks in Science group of subjects in XI class examination conducted by the College.
(d) First in the College in the test examination of XII class conducted by the College.
In XII standard examination conducted by the Board, she secured the following marks in Science group of subject out of total 100 marks -- 80 marks in theory plus 20 marks in practical : --
Theory Practical Total Chemistry 73 20 93 Biology 56 20 76 Physics 67 9 76
The gist of the petitioner''s case is this : She wanted to join the Medical College, for which relevant marks are in the subjects Physics, Chemistry and Biology. Singh was her Physics teacher. He was conducting a private coaching class. Many students, a list of which is referred to in the petition, had joined the said coaching class. Jyoti was also one of them. But finding that Singh was concentrating more on Mathematics -- a subject in which the petitioner was not interested -- She stopped attending the coaching class. Singh used to give warnings in the class to the students who did not join the coaching class. He directly warned Jyoti sometime between October -- December 1985 saying that "I will see as to how you go to the Medical College". Jyoti reported the said matter to her father, but she was advised to be tactful and not to antagonise Singh who could play a crucial role in her future career. Jyoti remained silent. Announcement was made that practical examination in Physics will be held with effect from 22nd Feb. 1986. The activity of obtaining the requisite certificate on the journal regarding completion of practical work from Singh started about 10 days before. On 12th Feb. 1986 Jyoti carried her Physics journal to Singh for his verification and certificate. Singh refused to verify and certify the same. Jyoti reiterated her requests on three occasions but it was of no use. 19-2-1986 was the last date when she made the request to Singh, who not only refused to sign but gave her a threat saying that he will see her in the allotment of practical marks in Physics. Jyoti then realised that the threat was real and that Singh was not going to spare her and was out to spoil her career. She was terribly frightened and reported the matter to her father. On 20th Feb. 1986, Jyoti''s father lodged a complaint in writing (Ann. C) to the Principal of the College -- second respondent -- stating all the facts and requested the Principal to certify Jyoti''s journal by exercising his powers as Head of the Institution in the interest of career of his daughter. Thereafter, the Principal requested Singh to issue the certificate to the petitioner as he did in respect of other students. But Singh told the Principal not to advise him in this matter as it was within his exclusive jurisdiction. Jyoti''s journal was up-to-date and complete in all respects and she was entitled to the certificate and there was no reason whatsoever for Singh to refuse to issue the certificate. The Principal as Head of the Institution had to issue the certificate ultimately due to which Jyoti could appear for the practical examination.
On 22-2-1986 practical examination in Physics was held. Jyoti did very well and expected cent percent marks. Practical examination was not over on that day and, hence, it was continued on the next day. Though obliged, as per Instruction No. 5 for the Conduct of Practical Examinations issued by the Board, to seal the answer papers and hand over the same on that very day to the examination-in-charge, namely, the Principal, the answer papers were neither sealed nor handed over. On the next day, i.e. on 23-2-1986", at about 12.00 p.m. Singh and external examiner Shri Dhage, 4th respondent -- went to the house of Smgh. Some of the students who had joined the private tuition class of Singh had also gone to the house of Singh and were permitted to correct their answer papers. In their answer papers marks were allotted thereafter. The incident of the students going to the house of Singh was reported by Jyoti to the principal who reprimanded Singh and Dhage for violating the Rules and Instructions issued by the Board.
Jyoti''s father lodged a complaint dated 24-2-1986 (Ann.-D) to (he Board stating all these facts and requested for enquiry into the matter. The said complaint was sent by registered post on 27th Feb. 1986 and thereafter Jyoti''s father met the Office bearers of the Board on 16-6-1986, 23-6-1986 and 19-9-1986 and pressed for an enquiry into the matter. Jyoti''s father was asked to approach the Court of law.
Jyoti''s father received a writing dated 2-7-1986 from Singh (Ann.-F), substance of which is somewhat this :
You are propagating against me about the less marks allotted to your daughter though I always tried for her welfare, gave her coaching for two years free of cost and, under the circumstances, a sum of Rs. 700/- or such other amount as you think fit should be paid to me.
The record and antecedents of Singh are bad. In 1981 he, as an internal examiner, had insisted upon the external examiner Shri Bhattad to allot full marks to the students who had joined his coaching class. Bhattad did not oblige and there was a quarrel between the two on that issue, due to which Singh refused to sign the statement of marks and other papers prepared by Bhattad and went away leaving Bhattad in a lurch. Bhattad had contacted the Board in the matter and the Board directed him to sign all the papers as external examiner and get the signature of the Principal as internal examiner. Accordingly, the valuation, was completed. The Board thereafter enquired into the matter and by way of punishment debarred Singh from acting as examiner for a period of four years.
Dhage -- 4th respondent -- has chosen not to appear in this matter. The Board, the PrincipalandSinghhavefiledseparatewritten submissions on affidavits. The Principal''s version is as follows :
On 20th Feb. 1986 Jyoti''s father had lodged a complaint (Ann.-C) and the said complaint was forwarded by him to the Administrator under Dak-Book entry at SI. No. 233, copy of which is filed on record. Principal had requested Singh to certify Jyoti''s journal which appeared to be complete. But he declined to do so. Realising that absence of a certificate will result in great prejudice to Jyoti, the Principal certified the journal. Jyoti had met him on 23-2-1986 and had reported about the removal of the record of the practical examination by Singh to his house for which the Principal did reprimand Singh. The Principal was not given the custody of the record of the practical examination held on 23-2-1986, but washanded over the record on the next day.
The Board has not challenged before us the statement on affidavit about the despatching of the complaint by registered post and the visits of Jyoti''s father to the Board Office. According to the Board it had no machinery to investigate into complaints of such nature. Singh has denied the allegations of malice. According to him, the journal was not certified as Jyoti failed to produce the same in time. He never charged fees to the students for attending the coaching class. He was running the said class free of charge to assist all those who came to his house for guidance. Relations between him and Jyoti''s father are good. He admits to have sent the writing (Ann.-F) to Jyoti''s father. His version is that he felt very much for the behaviour of Jyoti''s father. In order to shut the mouth of the father of Jyoti, he wrote that letter and because of that letter the petitioner''s father stopped his defamation. He specifically denies that he has "demanded Rs. 700/-towards private tuition as alleged". He further contends that the relations between the Principal and Jyoti''s father were also good and, therefore, on 22nd Feb. 1986 the Principal had handed over one chit to him containing the names of the students who should receive favourable treatment in the matter of allotment of marks.
The petitioner has filed an affidavit of one Jagdish Jhakhotia to the effect that Singh used to conduct private coaching class at his residence, used to charge tuition fees and that he was one of those who had joined the said class from August 1985 to January 1986. It further mentions that Singh used to say in the class room that he would give maximum marks to those who would join the private tuition class conducted by him.
Now, in the matter of allotment of marks, discretion of an examiner is almost unquestionable except in certain areas. Howsoever honest and sincere examiners may be, there can be variation not only in the allotment of marks by them to the same or similar answer in a subjective test, but there also can be variation in the allotment of marks by the same examiner to the same answer if examined at different points of time and mood. Thus, some variation and element of chance is inherent in the very examination system. That cannot be helped. Results of the examination cannot be successfully questioned only because some other examiner may allot different marks. But that does not mean that an examiner is above law. Nobody is. Examination is a great social event which plays a vital role in every civilised society. Society, social institutions -- all accept the assessment of an examiner and proceed on that basis upon the belief that it is dispassionate. Obviously, therefore, an examiner while assessing the performance of a student performs a public duty. It may be debatable as to whether he has a duty to act judicially in each of his activities, but it is not debatable that he has a duty to act fairly, fairplay being the essence of every public obligation. Duty to act fairly is not only implicit in the very nature of the functions of an examiner but is incorporated in the very Regulations under which the examinations are conducted, namely. The Maharashtra Secondary and Higher Secondary Education Boards Regulations, 1977 (the ''Regulations'') made under S."36(3) of the Maharashtra Secondary and Higher Secondary Education Boards Act, 1965 (the ''Act''). The Regns. 82, 102 and 104 deal directly or indirectly with the subject. Regulation 82 deals with the power of the Board to conduct a special examination or re-examination in one or more subjects or paper in a centre of the examination at any time as the Examination Committee may decide provided situation demands adoption of such a course. Regulation 102 deals with publication of results and Regn. 104 deals with verification of marks. Regulation 102(2) deserves special attention. It provides for amendment of result of the examination if the result is affected by -- (a) error, (b) malpractice, (c) fraud, (d) improper conduct or (e) other matter of what-, soever nature. The last wordings used in this Regulation will indicate that the list is merely illustrative and is not exhaustive. Thus, at least in the situations contemplated above, the assessment of an examination can be amended irrespective of the question as to who has brought about that situation. Even exercise of a discretionary power is vitiated if it is actuated by motives other than those for which power is granted. Bad faith vitiates the discretion. The concept of bad faith eludes precise definition. Amongst unending examples can be malice, dishonesty, vengeance, manipulation, fraud, etc. A power is exercised maliciously if its repository is motivated by personal animosity towards those who are directly affected by its exercise.
The petitioner has made pretty serious allegations against the third respondent. If they are adjudged to be substantially correct, it is plain that result of the Physics practical examination of the petitioner is vitiated. The learned counsel for the third respondent, Shri S. A. Jaiswal, is right when he contends that burden of proof heavily lies on the petitioner and if the result of the petition depends upon disputed question of fact the normal remedy in such matters is to approach a civil Court. Civil suit is a long drawn tiresome process to which a student placed in such situation can be driven in case ramification of questions raised cannot be settled except by" full disclosure of facts by detailed oral evidence and its testing by a cross-examination. The real point is : is it a case where the petitioner should be non-suited in writ petition on the ground of existence of alternate remedy. On well settled principles we do not think that in such matters civil suit is an alternate efficacious remedy. Next question is whether allegations are established before us by known and recognised standard of proof. What that standard is. Supreme Court in the case of Shivajirao Nilangekar Patil Vs. Dr Mahesh Madhav Gosavi and Others, , has in this connection observed as under: --
"41. Halsbury''s Laws of England, 4th Edn., Volume 17, page 16, paragraph 19 deals with thestandard of proof necessary in these types of cases. It has been stated that in civil cases the standard of proof is satisfied on a balance of probabilities. However, even within this formula, there are variations depending upon the subject matter of allegations."
We have thus to see whether the allegations are made out on a balance of probabilities.
The first and foremost circumstance that strikes us add (sic) is the unusually low per centage of marks in the disputed examination awarded to Jyoti who appears to be a brilliant girl. She has secured highest marks in Physics theory, viz. 67, next lower marks being 59 (practical marks-19). In practical, however, she is number two from the bottom, lowest marks being 7 awarded to a student who has secured only 14 marks in theory. As compared to the marks awarded to her in Physics theory, Chemistry, Biology practical and theory, and marks awarded in Physics practical examination to other students (who are much below the petitioner in the marks awarded in theory as well as in practical examinations in all subjects) marks awarded to her in the disputed paper are shockingly low. It is pertinent to notice that even those who have obtained rock bottom marks in Physics theory, have secured much higher than Jyoti in the practical. Petitioner has given the exam pies of certain roll numbers, in the petition itself. On veritification from the table supplied to us the following position emerges: --
Theory Practical 23 19 24 19 28 19 '' 28 18 32 18 36 17
The next circumstance is the fact of filing of the written complaint by Jyoti''s father to the Principal two days before the commencement of the practical examination in Physics. The Principal has admitted its receipt and he says that he had even forwarded the same forthwith to the management. There is no reason to doubt the correctness of this allegation in the background. Why should Jyoti or her father take the risk of antagonising an examiner just before the examination. Provocation must be grave, reasons must be compelling. There is even other material to corroborate this version. The certificate on the journal which should normally be signed by Singh is signed by the Principal. Singh''s version that Jyoti never produced her journal before him in time does not appeal to us. It does not appeal to the reason at all that a student like Jyoti will keep the journal unready and not produce it for verification before the teacher in charge. It is also pertinent to notice that she is the only student whose journal is not signed by Singh. Lodging of the written complaint (Annexure-D) to the Board immediately after the practical examination and the efforts by Jyoti''s father to move the machinery of the Board for investigation are also significant circumstances.
Past record of Singh is also relevant. The story of incident of 1981 about his behaviour with an external examiner -- Bhattad, on Bhattad''s refusing to oblige Singh by favouring certain students named by Singh does not appear to be concocted. Undoubtedly, Singh admits that no work was allotted to him for four years, but vaguely says that it was not for the reason alleged in the petition.
We see no reason whatsoever and none is pointed out to us -- as to why Jyoti or her father should have made serious allegations against Singh falsely in various oral as well as written complaints before the authorities and in this petition. Principal has admitted the receipt of the complaint about Singh unjustifiedly refusing to certify Jyoti''s journal and also about carrying the answer papers to his house on 23-2-1986. The principal substantially corroborates these two versions. His stand is that he had also personally requested Singh to certify the journal of Jyoti as was done in the case of other students, which request was turned down by Singh saying that it was a matter within Singh''s Jurisdiction and that he had also reprimanded Singh for carrying answer papers outside the premises of the centre. Details of threat given to Jyoti are stated in the petition, and so also the details about how Singh used topersuade students to join his private tutition class. The story Is supported by affidavit of a student Jagdish Jhakhotia. Singh denies to have conducted the coaching class for consideration. He admits that the students used to go to his house but, according to him, he used to guide those students without any consideration and only as a help. Not that there are no noble teachers who allow their students to encroach upon their private life and free time purely for the love of teaching and as a consideration of the welfare of their pupils. That class of teachers is fast vanishing. Singh does not appear to belong to that vanishing class. Explanation given by Singh for writing the letter-Ann. F demanding Rs. 700/- is far from convincing.
The above facts and circumstances stare at us and, in our judgment, the general story put up by Jyoti about Singh having hostile animus against her and the result of her Physics practical examination having been adversely affected by the said animus cannot be dismissed as a myth. Moredirect evidence of malpractice, though desirable, is impossible to be obtained. Thus, havinggiven the matter our anxious consideration, our finding is that Singh was conducting private coaching class for consideration, that Jyoti was deliberately awarded less marks and that it was Singh who was responsible for the same.
Singh has filed a chit in the handwriting of the Principal containing the names of as many as 11 students, including Jyoti, According to him, that chit was sent to him by the Principal at the timeof examination with a message that the students named in the chit should be given higher marks than they deserved, and that he had refused to ''oblige. The Principal''s version is thatthe said chit was sent long before with a message that the journals of those students had remained to be certified and should be certified. It is pertinent to notice that some of the students mentioned in the said chit are those in whose cases favouritism is alleged in the petition. In the whole background story put by the respondent No. 3 about the circumstances in which the said chit was received by him appears to be unnatural.
True it is that there was an external examiner and that his decision is final in the event of difference of opinion between him and the internal examiner. No motives are alleged against the external examiner. It is submitted on behalf of the third respondent that under the circumstances practicing of such a malpractice is an impossibility. We do not think so. External examiner seems to have left the matter to the best judgment of the internal examiner by relying upon him. _ After all internal examiner knows student better. Practical examination is not possible without mutual confidence. Both cannot simultaneously watch performance of every student. Thus, possibility of respondent No. playing a passive role cannot be ruled out. What exactly has happened between the two cannot be said with certainty. Mr. Pendharkar, the learned counsel for the petitioner, has suggested collusion between the two. But we cannot record that finding on the scant material. We appreciate the alternate submission that even such passive attitude on the part of the external examiner cannot be justified. He has a heavy responsibility, which cannot be discharged in the manner in which the respondent No. 4 has discharged in the present case. Respondent No. 4, therefore, cannot be totally obsolved in this affair. But his guilt, if any, is of an altogether different dimension. It is unfortunate that he has chosen not to appear in this matter in the face of serious allegations. His remaining absent cannot be justified. His communication to the Board that correct valuation of Jyoti''s practical paper was made is no substitute for appearing in the matter, and putting forth his version. Mere silence is no answer when there is duty to speak.
Under all these circumstances we quash the result of Physics Practical examination of the petitioner as being vitiated by bad faith and direct the first respondent to hold the said examination afresh.
We could have closed here. But we owe a duty not to overlook the seriousness and general importance of the matter. This petition brings into focus a darker side of our examination system. Loose talk about how some unscrupulous teachers exploit their position by deliberately delaying or refusing the issuance of completion certificate on journal or thesis on flimsy grounds and not only showing undue favours to few but also taking vindictive attitude in the practical examinations, is often heard. Despite grave provocation a student cannot make a complaint openly against such a teacher, firstly, because he is afraid on the consequence of taking wrath of one who can spoil his career and, secondly, because it is very difficult to establish favouritism and/or vindictive attitude in such matters. Such examples breed contempt for the teacher in the tender mind which is absolutely bad for the health of the society. Students cannot be blamed for the attitude. If they work hard, continuously, many times at the cost of other pleasures and leisures to which they are legitimately entitled in the early age and are deliberately deprived of the legitimate fruits, they are either frustrated or they enter into unhealthy competition in manipulations. It is of essence, therefore, that those guilty examiners should not be let off, if and when their objectionable activities see the light. We realise that no examination system can be guaranteedly foolproof. But that is no reason to overlook the increasing unhealthy tendencies and commercialisation of the educational system. Holding private tuition classes by examiners is one subtle mode of commercialisation. Many times what goeson is nothing less than extortion. Board has done well in prohibiting the same by Clause 76 of the Regulations. But the practical world is different. What is necessary is to take stern action against the erring examiners whenever defaults are brought to the notice of the Board. We entertain no doubt that appropriate action will be taken in the matter in terms of the Regulations. What it should be is for the Board to decide.
The petitioner has already lost one year. Time for getting admissions to the courses in the current academic sessions is to expire soon. Under the circumstances we direct the Board to take the Physics practical examination of the petitioner afresh as early as possible and declare results on that basis on or before 10th July, 1987.
Petition allowed. Rule absolute accordingly.
What about costs, is the only surviving question. For the entire respondent No. 3 is mainly responsible. Actually what he has done is an actionable wrong. We, therefore, direct the respondent No. 3 to bear the costs of the petitioner, first respondent and the second respondent in different sets.