Revaluation: It’s a question of answer scripts!
DECCAN CHRONICLE. | SANJAY PINTO
PublishedOct 26, 2019, 1:57 am IST
The apex court further went on to observe “that a person appointed erroneously to a post must not reap the benefits.
Madras high court
If you get an X-ray or scan done at a diagnostic centre or hospital, would you be given only the report or also the x-ray film and scan images? By the same logic, why should a school or university make a fuss and cite internal regulations over handing over answer scripts to students, especially in cases of revaluation? It took an application under the Right To Information (RTI) Act,2005, to galvanise an institution into action. To me, it’s a no brainer. The process of learning involves correction. And correction requires requires sufficient clarity on mistakes made. That clarity is possible only with access to answer scripts.
The Madras high court in Tamil Nadu Dr Ambedkar Law University Vs Tamil Nadu State Information Commission, Pavan Kumar Gandhi, Paras Jain & Kumar Shanu recently ruled that “the Law University, being a Public Institution, is bound to implement the provisions of the Right to Information Act, scrupulously in its letter and spirit. The moot question is why should any public authority shy away from providing public information. Undoubtedly, confidential files are protected under the provisions of the Act itself.” Justice S.M. Subramaniam has hit the nail on the head.
A cursory glance at Section 8 of the RTI Act will reveal that none of the exemptions is attracted to warrant denial of answer scripts. There are 12 exemptions under the statute, namely, information affecting the sovereignty and integrity of India, prohibited by courts, breach of legislative privilege, trade secrets or intellectual property, fiduciary matters, confidential data from foreign governments, sensitive matters that could endanger lives, cabinet papers with reasons for ongoing discussions within the Council of Ministers, privacy with no public interest overtones, violating the Official Secrets Act if the disclosure outweighs the harm to protected interests and limitation of beyond twenty years with irrelevant queries. Neither is an educational institution a security or intelligence organisation to take cover under Section 24 of the RTI Act.
The Madras High Court rightly relied on a decision of the Supreme Court in Central Board of Secondary Education (CBSE) Vs Aditya Bandopadhyay which had reasoned that “when a candidate participates in an examination and writes his answers in an answer book and submits it to the examining body for evaluation and declaration of the result, the answer-book is a document or record. When the answer-book is evaluated by an examiner appointed by the examining body, the evaluated answer-book becomes a record containing the ‘opinion’ of the examiner. Therefore, the evaluated answer-book is also an ‘information’ under the Right to Information Act.”
Revaluation is usually necessitated by possible mistakes or oversight by the examiners. Admittedly, there is scope for a wild goose chase. No one can deny that. From a consumer law standpoint, as the candidates pay exam fees, such errors may constitute deficiency in service, causing mental agony to the students. Some sensitive candidates may end up taking extreme steps too. In such scenarios, shouldn’t revaluation fees be refunded? At a practical level, if a refund for a change of marks becomes the norm, examiners may be forced to dig their heels in and not effect any change!
The issue gets tricky when job appointments are made on the basis of marks allotted and changes take place, post revaluation, especially after malpractices come to light. The Supreme Court’s judgment in Vikas Pratap Singh Vs State of Chhattisgarh is instructive. “The pristine maxim of ‘fraus et jus nunquam cohabitant’ (fraud and justice never dwell together) continues to dwell in spirit and the body of service law jurisprudence. It is settled law that no legal right in respect of appointment to a said post vests in a candidate who has obtained the employment by fraud, mischief, misrepresentation or malafide.”
The apex court further went on to observe “that a person appointed erroneously to a post must not reap the benefits of wrongful appointment jeopardising the interests of the meritorious and worthy candidates. However, in cases where a wrongful or irregular appointment is made without any mistake on the part of the appointee and upon discovery of such error or irregularity the appointee is terminated, this Court has taken a sympathetic view in the light of various factors including bonafide of the candidate in such appointment and length of service of the candidate after such appointment.”
It’s a ‘marks-ist’ world, stupid!
(The writer is an advocate at the Madras high court, columnist & author)
DECCAN CHRONICLE. | SANJAY PINTO
PublishedOct 26, 2019, 1:57 am IST
The apex court further went on to observe “that a person appointed erroneously to a post must not reap the benefits.
Madras high court
If you get an X-ray or scan done at a diagnostic centre or hospital, would you be given only the report or also the x-ray film and scan images? By the same logic, why should a school or university make a fuss and cite internal regulations over handing over answer scripts to students, especially in cases of revaluation? It took an application under the Right To Information (RTI) Act,2005, to galvanise an institution into action. To me, it’s a no brainer. The process of learning involves correction. And correction requires requires sufficient clarity on mistakes made. That clarity is possible only with access to answer scripts.
The Madras high court in Tamil Nadu Dr Ambedkar Law University Vs Tamil Nadu State Information Commission, Pavan Kumar Gandhi, Paras Jain & Kumar Shanu recently ruled that “the Law University, being a Public Institution, is bound to implement the provisions of the Right to Information Act, scrupulously in its letter and spirit. The moot question is why should any public authority shy away from providing public information. Undoubtedly, confidential files are protected under the provisions of the Act itself.” Justice S.M. Subramaniam has hit the nail on the head.
A cursory glance at Section 8 of the RTI Act will reveal that none of the exemptions is attracted to warrant denial of answer scripts. There are 12 exemptions under the statute, namely, information affecting the sovereignty and integrity of India, prohibited by courts, breach of legislative privilege, trade secrets or intellectual property, fiduciary matters, confidential data from foreign governments, sensitive matters that could endanger lives, cabinet papers with reasons for ongoing discussions within the Council of Ministers, privacy with no public interest overtones, violating the Official Secrets Act if the disclosure outweighs the harm to protected interests and limitation of beyond twenty years with irrelevant queries. Neither is an educational institution a security or intelligence organisation to take cover under Section 24 of the RTI Act.
The Madras High Court rightly relied on a decision of the Supreme Court in Central Board of Secondary Education (CBSE) Vs Aditya Bandopadhyay which had reasoned that “when a candidate participates in an examination and writes his answers in an answer book and submits it to the examining body for evaluation and declaration of the result, the answer-book is a document or record. When the answer-book is evaluated by an examiner appointed by the examining body, the evaluated answer-book becomes a record containing the ‘opinion’ of the examiner. Therefore, the evaluated answer-book is also an ‘information’ under the Right to Information Act.”
Revaluation is usually necessitated by possible mistakes or oversight by the examiners. Admittedly, there is scope for a wild goose chase. No one can deny that. From a consumer law standpoint, as the candidates pay exam fees, such errors may constitute deficiency in service, causing mental agony to the students. Some sensitive candidates may end up taking extreme steps too. In such scenarios, shouldn’t revaluation fees be refunded? At a practical level, if a refund for a change of marks becomes the norm, examiners may be forced to dig their heels in and not effect any change!
The issue gets tricky when job appointments are made on the basis of marks allotted and changes take place, post revaluation, especially after malpractices come to light. The Supreme Court’s judgment in Vikas Pratap Singh Vs State of Chhattisgarh is instructive. “The pristine maxim of ‘fraus et jus nunquam cohabitant’ (fraud and justice never dwell together) continues to dwell in spirit and the body of service law jurisprudence. It is settled law that no legal right in respect of appointment to a said post vests in a candidate who has obtained the employment by fraud, mischief, misrepresentation or malafide.”
The apex court further went on to observe “that a person appointed erroneously to a post must not reap the benefits of wrongful appointment jeopardising the interests of the meritorious and worthy candidates. However, in cases where a wrongful or irregular appointment is made without any mistake on the part of the appointee and upon discovery of such error or irregularity the appointee is terminated, this Court has taken a sympathetic view in the light of various factors including bonafide of the candidate in such appointment and length of service of the candidate after such appointment.”
It’s a ‘marks-ist’ world, stupid!
(The writer is an advocate at the Madras high court, columnist & author)
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