Central Board of Secondary Education v. Nasheta Zaidi

3. Suffice it, therefore, to state that, against the answer provided by the petitioner to Question 27, the examiner entered two ―✓‖ marks. I deem it necessary, in view of the stand taken by Mr. Atul Kumar, on behalf of the CBSE, to provide a screen shot of the two pages related to the answer to Question 27 as entered by the petitioner:

4. Clearly, the examiner has put one tick mark at the first page of the answer relating to Question 27 and a second tick mark on the second page of the answer relating to Question 27. Though Mr. Atul Kumar sought to contend that the second tick mark was not a tick mark but was merely the initial of the examiner, it does not appear to be so, at a plain glance.

5. Mr. Zaidi has taken me through the Marking Scheme of the CBSE, from which it is necessary to reproduce the General Instructions 6, 7, 8, 13 and 14: ―Instruction 6. Evaluators will mark (✓) wherever answer is correct. For wrong answer CROSS 'X" be marked. Evaluators will not put right (✓) while evaluating which gives an impression that answer is correct and no marks are awarded. This is most common mistake which evaluators are committing. Instruction 7. If a question has parts, please award marks on the right-hand side for each part. Marks awarded for different parts of the question should then be totaled up and written in the lefthand margin and encircled. This may be followed strictly. Instruction 8. If a question does not have any parts, marks must be awarded in the left-hand margin and encircled. This may also be followed strictly. Instruction 13. Ensure that you do not make the following common types of errors committed by the Examiner in the past:- • Leaving answer or part thereof unassessed in an answer book. • Giving more marks for an answer than assigned to it. • Wrong totaling of marks awarded on an answer. • Wrong transfer of marks from the inside pages of the answer book to the title page. • Wrong question wise totaling on the title page. • Wrong totaling of marks of the two columns on the title page. • Wrong grand total. • Marks in words and figures not tallying/not same. • Wrong transfer of marks from the answer book to online award list. • Answers marked as correct, but marks not awarded. (Ensure that the right tick mark is correctly and clearly indicated. It should merely be a line. Same is with the X for incorrect answer.) • Half or a part of answer marked correct and the rest as wrong, but no marks awarded. Instruction 14. While evaluating the answer books if the answer is found to be totally incorrect, it should be marked as cross (X) and awarded zero (0) Marks.‖ (Italicised supplied)

6. Mr. Zaidi‘s contention is that, as the examiner has entered two tick (✓) marks against the answer to Question 27, his client is entitled to full marks against the said answer.

7. Before proceeding to the submission of Mr. Atul Kumar, I may note that the Petitioner had applied for revaluation of the answer sheet, to which the following response was issued to the petitioner: ―Re-evaluation Status Application No. D51009R Roll No. 14780127 Class 12 Name of Candidate NASHETA ZAIDI Re-evaluation status: Subject Code(s) Status 029 – No mistake found Remark

8. Mr. Atul Kumar submits, in response t o Mr. Zaidi‘s submissions firstly, that the second tick mark against the answer to Question 27 is not a tick mark but is only the signature of the examiner (which I have already rejected); secondly, that as no marks were awarded by the examiner against the answer to Question 27, the CBSE was not at fault in awarding no marks to the petitioner against the said answer and, thirdly, without prejudice that the examiner has entered one tick mark only against the answer provided by the petitioner to all parts of Question 27 which seems to apply to Question 27 (i) or (ii).

9. At any rate, as only one tick mark has been entered by the examiner, he submits, the petitioner cannot be entitled to full marks against the answer provided to Question 27.

10. In the first place, I must observe that, even if there is an error at the end of the examiner, so long as the answer sheet does not reflect the examiner’s view as being that the answer is incorrect, the student has to be given the benefit of doubt. Assuming the examiner is remiss in a particular case regarding the manner in which he has marked the answer sheet, the student cannot be made to suffer and, unless the Court is satisfied that the examiner has found the answer to be incorrect, the student has to get the benefit of marks allotted to the question, against the answer that he has provided.

11. In the present case, it is clear that the examiner has entered at least one tick against the answer provided to Question 27. The manner in which the tick mark has been entered on the answer sheet between the answers to Question 27 (i) and 27 (ii) indicates that the examiner found the answer to Question 27 to be overall correct. Had only the answer provided by the petitioner to one of the parts of Question 27 been correct, the tick mark would have been entered against that part and cross (X) marks would have been entered against the answers to other parts of Question 27. In fact, a comparison of this page with other pages of the same answer sheet indicate that this particular examiner was not entering separate tick marks against each answer but, against various other answers too, where the question contained more than one part, the examiner had only entered one tick mark.

12. In any event, the examiner has not put a cross (X) mark against any of the answers provided in response to Question 27. This Court, cannot, therefore, presume that the answer provided by the petitioner, in response to any of the parts of Question 27, was found by the examiner to be incorrect.

13. Prima facie, therefore, the examiner was fully satisfied with the answer provided by the petitioner in respect of Question 27, qua all parts thereof.

14. The next issue to be addressed is the consequence of the examiner failing to put marks in the margin against the petitioner‘s answer to Question 27.

15. Mr. Atul Kumar submits that, as the examiner did not enter any mark alongside the answer to Question 27, the CBSE could not possibly have awarded any mark against the answer and that, therefore no fault can be laid at the doors of the CBSE. Mr. Atul Kumar further submits that, even in the covering page of the mark sheet, which requires the examiner to enter the marks against every question, he has entered “ ” against Question27.

16. It is correct that no marks have been entered by the examiner in the margin alongside the answer to question 27 as provided by the petitioner, though General Instructions 6 and 13 of the Marking Scheme of the CBSE specifically caution examiners against putting tick marks without awarding marks against the question. The question that the Court has to address, is however, the consequence that would follow if an examiner actually does not award marks against a question but puts a tick (✓) mark, indicating that the answer to the question is correct.

17. In my considered view, while the failure to award marks in the margin against a particular answer even after entering a tick (✓) mark may be a lapse on the part of the examiner in complying strictly with the instructions issued by the CBSE, the student cannot be made to suffer for that reason. Moreover, the CBSE Guidelines do not stipulate that, in the event of this happening, the student would not be awarded any marks for the answer given by him. So long as the examiner found the answer provided by the student to be correct, there can be no question at all of the student being awarded no marks against that answer. Else, it would do complete disservice to the efforts of the student, resulting in manifest injustice which the Court cannot countenance. To reiterate, the consequence of the lapse of the examiner, if any, cannot be visited on the student

18. The indisputable position in the present case is that the examiner has put a tick (✓) mark against the answer provided by the petitioner to Question 27. The further indisputable position is that, as per General Instruction 6 of the CBSE, of which the examiner was supposedly aware, the entering of a tick (✓) mark indicates that the answer provided by the student was correct. Clearly, in the view of the examiner, the Petitioner has provided the correct answer to Question 27.

19. I may note here, that, in the counter affidavit filed by the CBSE, one of the somewhat surprising stands that the CBSE has taken is that no marks were awarded against the answer to Question 27 because the answer did not pertain to the question. That is not a call which the CBSE can take. The decision on whether an answer to a question is relevant, correct, or incorrect, vests in the examiner. The CBSE cannot sit in appeal over the decision of the examiner.

20. The only occasion for the decision of the examiner to be revisited is if the paper is re-evaluated, at the option of the candidate. That also took place in the present case, and the CBSE informed the petitioner that there was no fault found in the first evaluation. In other words, the result of the re-evaluation was that the answer was once again found to be correct.

21. I may note, here, that Mr. Atul Kumar sought to dispute this observation by stating that, in his submission, the remark ―no mistake found‖ meant that when the paper was rechecked and the marks reassessed, it was found that there was no mistake in the original checking or in the original allocation of marks. This submission itself acknowledges the fact that there was no mistake found in the manner in which the examiner had originally checked the paper. In other words, it amounts to an implicit reiteration of the tick (✓) mark provided by the examiner against the answer to question 27.

22. If the answer to a question is correct, the student is entitled to be awarded marks against that answer. If the examiner has not assigned any mark less than the maximum marks which can be awarded against that question, the student is entitled to be awarded the maximum marks. This is especially so as, in the present case, though the CBSE Marking Scheme Instructions specifically require a cross (X) mark to be entered by the examiner if the answer to question was incorrect, no such cross marks has been entered by the examiner against answer provided by the petitioner in response to Question 27.

23. In that view of the matter, I am of the opinion that the petitioner is entitled to full marks against the answer provided by her to Question 27 of the Geography paper held on 2 March 2023 in the Class XII Board Examination.

24. The CBSE is accordingly directed to issue a corrected mark sheet to the Petitioner by adding 5 marks against the answer provided to Question 27.

25. The petition is accordingly allowed in the aforesaid terms.‖

CONTENTIONS OF THE APPELLANT:

8. Learned counsel for the Appellant would contend that the learned Single Judge has arrogated to himself the powers to award marks and such power is not vested in judicial authorities.

9. Learned counsel for the Appellant would further submit that matters relating to the examination of the answer and the marks awarded thereof would fall within the realm of the Examiner or the subject experts.

10. Learned counsel for the Appellant would also submit that the learned Single Judge has, in fact, gone over and beyond the reliefs as sought for and awarded marks, which is clearly unsustainable.

11. Learned Counsel for the Appellant would also submit that the award of full marks further exacerbates things in a situation where marks themselves could not have been awarded by the learned Single Judge.

12. Learned counsel for the Appellant would also submit that this Court, by Order dated 05.12.2024, directed the revaluation of the marks awarded qua Question No. 27 and based on the same, a report of the subject expert dated 28.02.2024 is handed over today in Court. He would submit that as per the said report, a maximum of 1.[5] marks could be awarded based on the quality of the reply to the question, and there arises no occasion for the Respondent No.1 to get the benefit of full marks, when clearly, she was not entitled to the same on merits.

CONTENTIONS OF THE RESPONDENT:

13. Per contra, learned counsel for the Respondents would contend that firstly, the said Order dated 05.12.2024, and in consequence of which the subject expert‘s opinion as to the marks that could be awarded, has been ascertained without prejudice to his rights and contentions. He would thus submit that the matter would have to be heard on merits and an ultimate determination be made on the correctness of the Judgment passed by the learned Single Judge.

14. He thereafter referred to the relevant paragraphs of the Judgment impugned herein and would seek to support the same by submitting that the learned Single Judge has entered into a detailed analysis and after referring to and relying upon the necessary instructions and in particular, instructions 6, 7, 8, 13 and 14 which are set out at Para 5 of the Impugned Judgment passed a detailed and reasoned order.

15. Learned counsel for Respondent No.1 would submit that, in view of the fact that these instructions are to be mandatorily followed, the learned Single Judge, in his consideration, has rightly held that the manner in which the paper was checked clearly entitles the Respondent No.1 to the benefit of full marks. ANALYSIS:

16. We have heard the learned counsel for the parties and, with their able assistance, perused the Impugned Judgment, the Examiner‘s Report, which is submitted, as well as other relevant records.

17. A perusal of the reliefs sought by Respondent No. 1 in the writ petition clearly indicates that, under clause (a) of the prayer, Respondent No. 1 sought the appointment of a competent examiner/evaluator and, pursuant to an evaluation by such examiner/evaluator, the rectification and amendment of the marks awarded to her. Further in clause (b) of the prayer, the Respondent No.1 prayed for a mandamus directing the Appellant herein to make the necessary changes in the final mark sheet, in the event of any addition of marks in Geography and to issue a fresh mark sheet thereafter.

18. As is apparent, the learned Single Judge has in fact travelled a much further distance from the reliefs as sought for.

19. Clearly, and by making what we believe is an incorrect assumption, of the manner of marking and the manner of checking papers, the learned Single Judge has deemed it appropriate to don the hat of an examiner and award marks, which is against the law and impermissible. The law in this regard with the scope of judicial review in the matter of revaluation has been succinctly laid down by the the Hon‘ble Supreme Court in the judgement of Vikesh Kumar Gupta and Another v. State of Rajasthan and Others[6]. The relevant excerpts of the said judgement are reproduced hereinbelow:

―14. Though re-evaluation can be directed if rules permit, this Court has deprecated the practice of re-evaluation and scrutiny of the questions by the courts which lack expertise in academic matters. It is not permissible for the High Court to examine the question papers and answer sheets itself, particularly when the Commission has assessed the inter se merit of the candidates (H.P. Public Service Commission v. Mukesh Thakur[7] ). Courts have to show deference and consideration to the recommendation of the expert committee who have the expertise to evaluate and make recommendations (see Basavaiah v. H.L. Ramesh[8] ).

15. Examining the scope of judicial review with regards to reevaluation of answer sheets, this Court in Ran Vijay Singh v. State of U.P.[9] held that the court should not re-evaluate or scrutinise the answer sheets of a candidate as it has no expertise in the matters and the academic matters are best left to academics. This Court in the said judgment further held as follows: (Ran Vijay Singh case[9], SCC pp. 369-70, paras 31-32) ―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.

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 equally great efforts to successfully conduct an examination. The enormity of the task might reveal some lapse at a later stage, but the court must consider the internal checks and balances put in place by the 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.‖ ***

17. A perusal of the above judgments would make it clear that courts should be very slow in interfering with expert opinion in academic matters......‖ (emphasis added)

20. To augment, the Supreme Court in CBSE v. Khushboo Shrivastava[7], held that courts, while exercising judicial review under Article 226, cannot replace the academic judgment of examiners with their own. The relevant extract of the said judgment is set out below: “11. In our considered opinion, neither the learned Single Judge nor the Division Bench of the High Court could have substituted his/its own views for that of the examiners and awarded two additional marks to Respondent 1 for the two answers in exercise of powers of judicial review under Article 226 of the Constitution as these are purely academic matters. This Court in Maharashtra State Board of Secondary and Higher Secondary Education v. Paritosh Bhupeshkumar Sheth [(1984) 4 SCC 27] has observed: (SCC pp. 56-57, para 29) ―29. … As has been repeatedly pointed out by this Court, 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 will 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 grassroots 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.‖ ―30. The law on the subject is therefore, quite clear and we only propose to highlight a few significant conclusions. They are:

30.1. If a statute, Rule or Regulation governing an examination permits the reevaluation of an answer sheet or scrutiny of an answer sheet as a matter of right, then the authority conducting the examination may permit it;

30.2. If a statute, Rule or Regulation governing an examination does not permit reevaluation or scrutiny of an answer sheet (as distinct from prohibiting it) then the court may permit re-evaluation or scrutiny only if it is demonstrated very clearly, without any ―inferential process of reasoning or by a process of rationalisation‖ and only in rare or exceptional cases that a material error has been committed;

30.3. The court should not at all re-evaluate or scrutinise the answer sheets of a candidate—it has no expertise in the matter and academic matters are best left to academics;

30.4. The court should presume the correctness of the key answers and proceed on that assumption; and 30.5. In the event of a doubt, the benefit should go to the examination authority rather than to the candidate.‖‖ (emphasis added)

21. As has been held in catena of judgments of the Supreme Court, Courts, in cases pertaining to the evaluation or revaluation of answer sheets, have to permit the competent and expert authorities to render a final evaluation. Courts cannot on the basis of alleged procedural irregularities in the manner in which an answer sheet has been checked by the examiner, arrogate to themselves the power to award marks.

22. While awarding the marks based on the alleged failure or error on the part of the Examiner to affix the proper affirmative tick mark or negative cross mark, the learned Single Judge has entered into the determinative factual analysis, which, in our mind, is clearly not the remit of a Writ Court.

23. We also take note of the findings rendered by the learned Single Judge to the effect, that in the event that there is a lapse on the part of an examiner in carrying out the instructions issued by the CBSE, the student cannot be made to suffer, as doing so would be a complete disservice to the efforts of the student and would result in the manifest injustice to the student.

24. While so holding, we are of the opinion that the learned Single Judge has completely overlooked the aspect of how the award of marks which are not commensurate with the merit of the student, especially on an upward basis, would result in manifest injustice being rendered to thousands of other students who due to such upward revision of marks, would be pushed down in the merit list.

25. We are of the firm opinion that the award of marks predicated on the alleged manifest injustice to the singular student, resulting in the consequential repercussions to the future of manifold other students who would, as a result of such upward revision of the marks, be pushed down in the merit list and thereby prejudicing their future prospects would be manifestly unjust to these other students. This is more so when it is not within the domain of the Writ Courts to, merely because of a lapse on the part of an examiner, award marks, and that too full marks, without even an ascertainment of the actual merits of the student.

26. We also queried the learned counsel for Respondent No.1 as to what Respondent No.1 was currently doing, to which the answer that was received was that she is currently undergoing the third year of her undergraduate course.

27. We further queried the learned counsel for Respondent No.1 as to the prejudice that would be caused, since by virtue of the Order dated 11.03.2024, the operation of the Impugned Judgment came to be stayed, and it was on the basis of the unrevised marks that she had already secured admission and was on the verge of completion of her undergraduate course.

28. Learned counsel for the Respondent No.1, in response to the same, would state that the Respondent No.1 may wish to apply for a post-graduate course and at that point in time, it is likely that the marks secured by her in the 12th standard would come into question.

29. Despite repeated queries as to which such post-graduate courses take into consideration, marks attained by students in the higher secondary level, that is, in the 12th standard, for the purpose of grant of admission in post-graduate courses, the learned counsel for the Respondent No.1 was unable to give any such instance. As is apparent, the question of prejudice is an important one, which in the present case does not appear to exist. CONCLUSION:

30. We are therefore of the considered view that, given the factual matrix and the rival contentions in the present matter, the Impugned Judgment is liable to be set aside to the extent that the learned Single Judge directed the CBSE, the Appellant herein, not just any, but full marks to Respondent No. 1, which is impermissible in law.

31. Nevertheless, it would be only fair that the Respondent No.1 be given the benefit of the revaluated marks which have been submitted today in a sealed cover, in compliance with the Order dated 05.12.2025, and which are also commensurate with the prayers as sought for by her in the Writ Petition.

32. Resultantly, and in view of the peculiar facts and circumstances of the present case, we are of the opinion that both Prayers A and B of the Writ Petition can be granted. Since the exercise in part satisfaction of Prayer A has already been carried out, we deem it appropriate to direct that the Petitioner be held to have been awarded 1.[5] marks in respect of Question 27 of the Geography paper and direct the concerned authorities to carry out the consequential correction in the mark sheet and issue a fresh mark sheet reflecting the amended marks.

33. With the aforesaid directions, we partly allow the Appeal and dispose of the same with no award as to costs. ANIL KSHETARPAL, J. HARISH VAIDYANATHAN SHANKAR, J. DECEMBER 02, 2025/v/rou