Writ Petition No.6395 of 2005

2nd February, 2006

Petitioner Counsel: Mr. M. M. VASHI,Mr. L. M. ACHARYA,Mr. V. G. GOKHALE
Respondent Counsel: Ms. DEEPA CHAVAN,Mr. KIRAN GANDHI

Cases Cited:
Akshay Dilip Bhalerao Vs. State of Maharashtra, 2006(1) ALL MR 342 [Para 1,2,4,15,16,18,20,22]
Maharashtra State Board of Secondary and Higher Secondary Education Vs. Paritosh Bhupesh Kurmarsheth, AIR 1984 SC 1543 [Para 1,2,4,5,11,12,15,22]
Rajkishore Mohanty Vs. Council of Higher Secondary Education, Orissa, AIR 1994 Orissa 31 [Para 2,4,15,16]
Kurushetra University, AIR 2002 SC 659 [Para 17]
University of Jammu, 2001(5) Serv.R.304 SC [Para 17]
2002(4) SCC 638 [Para 20]

JUDGMENT

D. B. BHOSALE, J.:- The learned Division Bench of this Court, consisting of F.I. Rebello and Dr. D. Y. Chandrachud, JJ., in Writ Petition No.6395 of 2005, by order dated October 7, 2005, made a reference of the following question to a larger Bench for adjudication since they were unable to agree with the view taken by the learned Division Bench at Aurangabad, consisting of R.M.S. Khandeparkar and S. P. Kukday, JJ., in Akshay Dilip Bhalerao Vs. The State of Maharashtra, (2006(1) ALL MR 342) Writ Petition No.4484 of 2005 decided on 21-7-2005.

"Whether after the validity of Regulation 104 has been upheld by the Apex Court in Maharashtra State Board of Secondary and Higher Secondary Education and another Vs. Paritosh Bhupesh Kurmarsheth (supra), is it open for the Court to order revaluation on the ground that there are cases which amount to an exception to the rule, as held by the learned Division Bench at Aurangabad in Akshay (supra).?"

2. In Akshay Bhalerao's case (2006(1) ALL MR 342, after considering Regulation 104 of the Maharashtra Secondary and Higher Secondary Education Boards Regulations, 1977 (for short, "the Regulations") and the Judgment of the Supreme Court in Maharashtra State Board of Secondary and Higher Secondary Education and another Vs. Paritosh Bhupesh Kurmarsheth, AIR 1984 SC 1543 and as also the judgment of the Orissa High Court in Rajkishore Mohanty and others Vs. Council of Higher Secondary Education, Orissa and others, AIR 1994 Orissa 31, the learned Division Bench directed the board to subject the answer papers of English to revaluation by any competent valuer other than the valuer who had valued those answer papers earlier, within a period of five weeks from the date of the order and to carry out necessary corrections/modifications in the ultimate results of the petitioners, based on the result of such revaluation and do the needful in that regard. The challenge to the constitutional validity of Regulation 57(2) of the Regulations, which is pari materia with Regulation 104, however, has been upheld. It has also been observed in the said judgment that "the revaluation was directed in view of the peculiar facts and circumstances of the petitions and, therefore, the decision should not be construed as a precedent but should be confined to the facts and circumstances therein." In the reference order dated 7-10-2005, the learned Division Bench, expressed that it is not open to the Court in the face of the judgment of the Supreme Court in Paritosh Bhupesh Kurmarsheth's case (supra) to direct revaluation even in the cases which amount to an exception to the rule, as held in Akshay Bhalerao's case. It is against this backdrop the aforestated question has been formulated and referred to for the consideration by a larger Bench.

3. The petitioner had appeared for higher secondary certificate (for short, "H.S.C.") examination conducted by the Maharashtra State Board of Secondary and Higher Secondary Education, Pune, Kolhapur Divisional Board, Kolhapur (for short, "State-Board"), in the month of March-April, 2005. He secured 83.67% in the said examination. However, in the subjects of English and Information Technology (IT) he secured only 68 and 61 marks out of 100 which were not to his satisfaction and consistent with his performance in all earlier examinations. According to the petitioner, the valuation of his performance in these two subjects was not fair and proper. The further case set up by the petitioner is that all throughout he has secured high ranks and awards in the school and the junior college. In middle school scholarship examination, Maharashtra Talent Search examination, Maths examination held by the Maharashtra Ganit Adhyapak Mandal, etc. also he had secured high ranks. He has, in detail, mentioned his curriculum vitae in paragraph 2 of the writ petition in support of his claim being a meritorious student all throughout. He further states that he was shocked and surprised to see the marks in English and IT subjects which were much below his expectations. The petitioner, therefore, applied for verification of the marks in the subjects of English and IT as provided for in Regulation 104 of the Regulations. The State Board, vide its communication dated 27-6-2005, informed him that the verification shows that there is "NO CHANGE" in the marks assigned by the examiner/moderator and which are already communicated to him in the statement of marks. It is this communication sent by the State-Board is impugned in the instant petition.

4. We heard the learned counsel for the parties for quite sometime and with their assistance perused the judgment of the learned Division Bench in Akshay Bhalerao's case, (2006(1) ALL MR 342) and also the judgment of the Supreme Court in Paritosh Bhupesh Kurmarsheth's case and of the Orissa High Court in Rajkishore Mohanty's case. We also perused the reference order and other material placed before us. Mr. Vashi, learned counsel for the petitioner, at the outset, submitted that the petitioner has been a meritorious student all throughout and looking to his past performance it is inconceivable that he would secure only 68 and 61 marks in the subjects of English and IT. In all the earlier examinations he had secured more than 80% marks in these subjects and, therefore, it was his legitimate expectation that he would earn good marks in both these subjects. Against this backdrop, according to Mr. Vashi, something seems to have gone wrong in evaluation of his answer books in these subjects and, therefore, the petitioner's case falls in the category of an "exception to the rule". He further submitted that it is always open for a student to seek revaluation in such circumstances and for the board to re-evaluate the answer book in a particular subject if it is found that no precaution was taken and necessary safeguards provided to ensure that the answer books inclusive of supplements were not kept in safe custody so as to eliminate danger of they being tampered with and that the evaluation is done by the examiner by not applying with uniform standard with checks and counter-checks at different stages and that the measures for detection of malpractice has not been effectively adopted. The Board under Regulation 102, in such a situation, is empowered to interfere and to give appropriate direction including a direction of revaluation by any competent valuer other than the valuer who had valued such answer books. In support of these contentions, he placed reliance upon the observations made by the Supreme Court in paragraph 26 of the Judgment in Paritosh Bhupesh Kurmarsheth's case. He also placed reliance upon the Judgment of the Orissa High Court in Rajkishore Mohanty's case to contend that though there is no specific provision in the regulations to direct revaluation, in an exceptional case, such as of the petitioner, in the interest of a student and to ensure that career of a student is not wrecked the Court can direct revaluation of answer papers. Lastly he submitted that the powers conferred on the State Board under Regulation 102(2) can very well be exercised by the Court for directing revaluation of answer books.

5. Per contra, Ms. Deepa Chavan, learned counsel for the State Board, submitted that under any circumstances, it is not open for the Court to direct revaluation of answer books in the face of the Judgment of the Supreme Court in Paritosh Bhupesh Kurmarsheth's case. All the questions/issues have been settled by the Supreme Court in the said judgment while upholding the validity of clauses (1) to (3) of Regulation 104. The case of the petitioner is squarely covered by the said judgment and in view thereof revaluation of the answer books cannot be directed even on the ground that this is the case which amounts to an exception to the rule. Our attention was drawn to the reply affidavit filed by the Secretary of the State Board in which a detailed procedure that is followed by the Board from the initial stage of making applications for examination right upto publication of results and considerations of the applications for verification has been mentioned. The reply affidavit also refers to the procedure evolved by the Board for ensuring fairness and accuracy in evaluation of answer books which, according to Ms. Chavan, is foolproof and does not leave any scope whatsoever for human error on the part of the examiners and/or malpractice on the part of the examinees as well as examiners.

6. Before we proceed to consider the question referred to for our consideration, it would be advantageous to look into the relevant provisions of the Maharashtra Secondary and Higher Secondary Education Boards Act, 1965 (for short, "Act") and the relevant regulations. The Act provides for the establishment of a State Board and Divisional Boards to regulate certain matters pertaining to secondary and higher secondary education in the State. Section 3(1) provides that the State Government shall, by notification in the Official Gazette, establish a Board for the whole State by the name "Maharashtra State Board of Secondary and Higher Secondary Education". By sub-section (2) of the same section, it is further provided that the State Government shall, likewise, establish a Board for each of the divisions under such name as may be specified in the notification. The Divisional Boards conduct two public examinations, namely the Higher Secondary Certificate Examination (H.S.C.) and the Secondary School Certificate Examination (S.S.C.).

7. The powers and duties of the State Board have been enumerated in clauses (a) to (w) of section 18 of the Act. Clause (f) thereof empowers the Board to prescribe the general conditions governing admission of regular and private candidates to the final examination, and to specify the conditions regarding attendance and character, on the fulfilment of which a candidate shall have a right to be admitted to and appear at any such examination. Section 19 deals with the powers and duties of a Divisional Board. Clause (f) thereof deals with the duty of the Divisional Board to conduct in the area of its jurisdiction the final examination on behalf of the State Board. Clause (g) empowers the Divisional Board to appoint paper setters, translators, examiners, moderators, supervisors and other necessary personnel for conducting the final examination in the area of its jurisdiction, for evaluation of candidates' performance and for compiling and release of results in accordance with such instructions as the State Board may from time to time issue. Under clause (h), it is within the power of the Divisional Board to admit candidates for the final examination according to the regulations made by the State Board in this behalf. Clause (m) vests the Divisional Board with power to generally evaluate the performance of students in all examinations in secondary schools and junior colleges including the final examination and make necessary recommendations to the State Board in that behalf.

8. Section 36(1) of the Act empowers the State Board to make "regulations" for the purpose of carrying into effect the provisions of the Act. Sub-section (2) states that, without prejudice to the generality of foregoing power, such regulations may provide for any of the matters enumerated in clauses (a) to (n) thereof. Sub-section (3) lays down that no regulation made under this section shall have effect until the same has been sanctioned by the State Government.

9. The Regulations framed by the State Board and sanctioned by the State Government under sub-section (3) of section 36 were published on 11-7-1977. A bare look at the regulations show that they consist of three parts. Part-I contains the provisions common to S.S.C. and H.S.C. examinations; Part-II contains the regulations pertaining to S.S.C. examination and Part-III pertains to H.S.C. examination. In the instant writ petition, we are concerned with Part-III of the Regulations and in particular Regulations 102 and 104 therein. It may be noticed that Regulations 55 and 57 in Part-II pertaining exclusively to S.S.C. examination are pari materia with Regulations 102 and 104 respectively in Part-III. Clauses (1) and (3) of Regulation 104 and clause (2) of Regulation 102, with which we are primarily concerned in the instant writ petition, read thus;

"104. Verification of marks obtained by a candidate in a subject. -

(1) Any candidate who has appeared at the Higher Secondary Certificate Examination may apply to the Divisional Secretary for verification of marks in any particular subject. The verification will be restricted to checking whether all the answers have been examined and that there has been no mistake in the totalling of marks for each question in that subject and transferring marks correctly on the first cover page of the answer book mentioned by the candidate are intact. No revaluation of the answer-book or supplements shall be done.

(3) No candidate shall claim, or be entitled to revaluation of his answers or disclosure or inspection of the answer-books or other documents as these are treated by the Divisional Board as most confidential."

102. Publication of Results :

(2) In any case, where it is found that the result of the examination has been affected by error, malpractice, fraud, improper conduct or other matter of whatsoever nature, the Divisional Board, on the recommendation of the Standing Committee, shall have power to amend such result in such manner as shall be in accordance with the true position and to make such declaration as it may consider necessary in that behalf, provided that except as provided in clause (3) below, no result shall be amended after the expiration of six months from the date of declaration of the results."

10. Regulation 104(1) shows that any candidate, who has appeared for H.S.C. examination, can seek verification of marks in any particular subject. However, such verification will be restricted to checking whether all the answers have been examined and that there has been no mistake in the totalling of marks for each question in that subject and transferring marks correctly on the first cover page of the answer-book mentioned by the candidate are intact. It further makes explicitly clear that "no revaluation of the answer-book or supplements shall be done". Clause (3) of Regulation 104 provides that no candidate shall claim, or be entitled to revaluation of his answers or disclosure or inspection of the answer-books or other documents as these are treated by the Divisional Board as most confidential. Under clause (2) of Regulation 102, the Divisional Board, on the recommendation of the Standing Committee, shall have power to amend the result of the examination which has been affected by error, malpractice, fraud, improper conduct or other matter of whatsoever nature.

11. The nature and composition of the State Board, on whom the regulation making power has been conferred by the Act, may also be noticed at this stage. The composition of the State Board is set out in section 5. It consist of ex-officio, elected and nominated members in the field of education. It will be seen therefrom that the State Board is comprised of members who can be reasonably expected to possess intimate knowledge, practical know-how, expertise and experience in all matters pertaining to the field of education-school and college-and it is to such highly responsible body of professional men that the legislature has entrusted the task of framing regulations laying down the details of policy of working out the provisions of the Act. It is relevant to notice that in Paritosh Bhupesh Kurmarsheth's case (supra) the Supreme Court has observed that the Regulations framed by the Board under section 36 are in the nature of statutory rules and they have the full vigour and force of subordinate legislation made by a delegate duly empowered in that behalf by the legislature. The constitutionality of Regulation 104 of the Regulations was under consideration before the Supreme Court in that case.

12. Since a considerable part of the arguments advanced by the learned counsel for the parties was devoted on the judgment of the Supreme Court in Paritosh Bhupesh Kurmarsheth's case, it will be convenient to refer to the question involved in that case and the law laid down by the Supreme Court, before we deal with the question referred to for our consideration. In Paritosh Bhupesh Kurmarsheth's case the Supreme Court was dealing with the two judgments of the learned Division Bench (V. S. Deshpande and V. A. Mohta, JJ.) of this Court which had disposed of a batch of 39 writ petitions. In those writ petitions, the petitioners were seeking issuance of writs directing the board to allow to the petitioners disclosure and inspection of their answer books in the public examination, the results whereof had already been published, and to conduct "revaluation' of such all the answer books as the petitioners may demand after inspection. The vires of Regulation 104 was also challenged on the ground that it was unreasonable, arbitrary and unconstitutional. This Court, in the said batch of writ petitions, had upheld the challenge. The Supreme Court, however, after examining the challenge in the light of the provisions of the Act and Regulations, set aside both the judgments of this Court and upheld the validity of the said Regulation. Regulation 102 was also considered by the Supreme Court.

13. The validity of the provisions in clauses (1) and (3) of Regulation 104, which provides that no revaluation of the answer books or supplements shall be done and that no candidate shall claim or be entitled to claim a revaluation of answer books, was also dealt with by the learned Judge (V. A. Mohta, J.) of this Court in his separate judgment. It was observed by Mohta, J. that clauses (1) and (3) of Regulation 104 insofar as they prohibit revaluation, are also void on the ground of unreasonableness. The Supreme Court, however, set aside the said judgment, and observed thus :

"........ The validity of the prohibition against disclosure and inspection having been upheld by us, the entirety of the reasoning contained in the judgment of Mohta, J. in support of his conclusion invalidating the provisions against revaluation contained in clauses (1) and (3) of Regulation 104 looses its foundation."

"........ The view expressed by the learned Judge that Regulation 102(2) which confers on the Board a suo motu power of amending the result where it is found that such a result has been affected by any error, malpractice, fraud, improper conduct etc. will be rendered nugatory and ineffective by the prohibition on revaluation is fallacious and unsound. While discussing the scope of the said regulation, we have pointed out that its purpose and effect is only to confer a suo motu power on the Board to correct errors in cases where irregularities like malpractice, misconduct, fraud etc are found out and it does not confer any right on the examinee to demand any correction of the results."

"........... All scope for doubt or speculation in relation to this matter has, however,been eliminated by the provisions contained in Regulation 104, which specifically deals with the subject of verification of marks obtained by a candidate. Clauses (1) and (3) of Regulation 104 have to be read together and not in isolation from each other. The right of verification conferred by clause (1) is subject to limitation contained in the same clause that no revaluation of the answer books or supplements shall be done and further restrictions imposed by clause (3) prohibiting prohibiting disclosure or inspection of all the answer-books." (Emphasis supplied)

The Supreme Court then proceeded to observe in the concluding paragraphs as follows:

"If the candidates are all to be given inspection of their answer books or the revaluation of the answer papers is to be done in the presence of the candidates, the process is bound to be extremely time consuming and if such a request is made by even about ten percent of the candidates it would involve several thousands of man hours and is bound to throw entire system out of gear. Further, 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 enormity of the labour and the time involved in the process." (Emphasis supplied)

14. It is, thus, clear that the power conferred on the Divisional Board under Regulation 102(2) to amend the result of the examination in respect of any candidate or candidates on its being found that it has been affected by error, malpractice, fraud, improper conduct, etc. is a suo motu power of the Board. The Regulation 102(2), in any case, does not confer any right on an examinee to demand revaluation, disclosure, inspection or verification of his answer-books or other related documents. Clause (1) and (3) of Regulation 104 deal with the subject of verification of the marks obtained by a candidate. The right of verification conferred by clause (1) is subject to limitation contained in the same clause that no revaluation of the answer books or supplements shall be done and further restrictions imposed by clause (3) prohibiting disclosure or inspection of all the answer books. From the judgment of the Supreme Court, it is thus clear that all the questions/issues raised concerning Regulations 104 and 102 of the Regulations were settled unequivocally and no grey area was left out for further interpretation. In the face of settled position of law, in our opinion, it is not open for the Court to direct revaluation of the answer books in any case whatsoever.

15. Against the backdrop of the law laid down by the Supreme Court in the aforementioned judgment we now proceed to see as to what was the question raised in the writ petitions filed by Akshay Dilip Bhalerao and others, (2006(1) ALL MR 342) (supra) and in what circumstances the direction to re-evaluate answer books of the petitioners therein was given by the learned Division Bench. The petitioners therein were also students of the English medium school and had appeared for S.S.C. examination conducted by the State Board in 2005. The case set up by all the petitioners was that all throughout they had scored good marks in all the subjects including English. The grade of marks earned by them, in the final examination conducted by the Board, in the subject of English were, however, not upto their satisfaction and expectations. Therefore, they had applied for "revaluation" though there is no provision in the Act or Regulations to make such request. The Board, by its reply to the said application, informed them that the only remedy available to them was to apply for verification and not for revaluation. Since all the petitioners apprehended that the verification may not serve the purpose they had filed the writ petitions in the High Court for redressal of their grievance praying for relief of revaluation of answer books. Validity of Regulation 57, which is pari materia with Regulation 104, was also challenged on the ground that it is unreasonable, arbitrary and unconstitutional. The learned Division Bench, while considering the challenge, did make reference to the judgment of the Supreme Court in Paritosh Bhupesh Kurmarsheth's case (supra) to hold that challenge to the constitutionality of Regulation 104 is not open. The judgment of Orissa High Court in Rajkishore Mohanty's case, however, seems to have influenced the learned Judges for giving directions to the Board to re-evaluate the answer books of all the petitioners. While so doing they have observed that "when we come across the cases where brilliant students securing more than 80% marks in other subjects fail only because of the failure in English though they are from English medium school, it can be said that something is wrong somewhere". It was further observed that "where it is found that students from the particular school are victimised and that the students studying in English medium who secured very good percentage of marks in all other subjects than English, it can be said that such cases are an exception to the rules." With due respect to the learned Judges, in our opinion, the law laid down by the Supreme Court in Paritosh Bhupesh Kurmarsheth's case and even the judgment of the Orissa High Court in Rajkishore Mohanty's case was not appreciated by them in its proper perspective.

16. In Rajkishore Mohanty's case, the learned Division Bench of the Orissa High Court was considering the challenge to the correctness of the marks awarded in various papers on the ground that there had been improper valuation and/or incorrect reflection of the marks in the mark list supplied to the students. The Division Bench has observed that "it is imperatively desirable that there should be fairness and accuracy in evaluation of answer books. The system should be foolproof so far as errors are concerned leaving no scope for genuine and bona fide grievance. Enormity of labour and time involved, notwithstanding, a positive attempt to eliminate gross and indefinite uncertainty in the matter of evaluation is a must." In that case, a Committee was appointed to deal with the cases where applications were made for re-addition of marks wherever necessary. In paragraph 6 of the report, it was further observed that "it is true that there is no specific provision in the regulation for constitution of such Committee. But in the interest of candidates and to avoid unnecessary delay, we have felt necessity of constitution of such Committee. We are sure that if the aforesaid procedure is adopted, inaccuracy in evaluation shall be reduced to considerable extent. This arrangement shall be made in annual examination, 1993 and for subsequent examinations." However, it is pertinent to note that in paragraph 7 of the report, it was categorically observed that "since revaluation is not permissible, we have not considered it fair to direct revaluation." Though these observations in paragraph 7 were noticed by the learned Division Bench in Akshay Bhalerao's case, (2006(1) ALL MR 342) it has proceeded to direct revaluation of the answer books of all the petitioners. We are unable to agree with the view taken by the learned Division Bench in that case.

17. We can understand disappointment and frustration as also the anxiety of the students who have not secured the grade of marks anticipated by them. Every such student is bound to have a feeling that there has not been proper evaluation of his performance in the examination and, therefore, he would naturally like to have revaluation and/or verification of the answer books. However, the question is whether or not a student has a right to demand revaluation of answer books, in the face of a statutory regulations framed by the State Board expressly denying such right. The learned Division Bench in Akshay Bhalerao's case besides being influenced by the gross facts of the petitions before them, has further noticed that some of the Universities such as Kurushetra University, AIR 2002 SC 659 and University of Jammu, 2001(5) Serv.R. 304 SC, are permitting revaluation of the answer books ushering a new era. In our opinion, this has little relevance for the purpose of deciding about the legality of the impugned order. We do not know under what circumstances the University of Kurushetra and Jammu are permitting revaluation of the answer books. The Division Bench, in paragraph 10 of the judgment, has then proceeded to analyse the question paper and make reference to the marks obtained by every individual student in different subjects so as to demonstrate how and why the marks secured by them in the subject of English were incorrect and has further proceeded to observe that "something is wrong somewhere". We are afraid, such analysis of the question paper and consideration of the marks of every individual student in other subjects so as to reach a conclusion that they ought to have secured good marks even in the subject of English, is wrong and cannot be encouraged. In our opinion, it is not the task of a Court. It is well settled that 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. Expectations in any case cannot be a guide for coming to any conclusion. Students always have their own estimation which, most of the times, proves to be exaggeration. Merely because there is substantial difference in the marks obtained by them in the college examinations and the examinations conducted by the Board it cannot be said that "something is wrong somewhere" and/or simply because such difference of marks crosses rational limits, it cannot be termed as an exceptional case. Sometimes it happens that students get good marks in the college examinations including preliminary examinations and in Board examinations they do not get marks as per their expectations or match with the marks earned in the college. It is quite possible that colleges with a view to encourage their students and built up their confidence, sometimes give them more marks which may not happen when they perform in the Board examinations. The teachers/examiners in the college examinations evaluate the answer papers of the students in their college only. Whereas, in the Board examination the same students require to compete with the students across the State and evaluation is also by the examiners other than of the college of which the students belong to. Therefore, in our opinion, the marks obtained in the college examination cannot be a guide to reach a conclusion that something is wrong somewhere and to direct revaluation.

18. If the view taken by the learned Division Bench in Akshay Bhalerao's case, (2006(1) ALL MR 342) is upheld it would create a very strange and uncontrollable situation. Every student who fails to secure the grade of marks anticipated by him and who genuinely feels that "something is wrong somewhere" will approach Court and in that case the Court will have to decide whether his case falls in that category and/or is an exception to the rule and give directions to the Board for revaluation of answer books of all such students. In our opinion, it is not the task of Court. The State Board is a very responsible body consisting of the experts in the field. It is further seen that the Regulations have conferred all the powers on the State Board which can take care of all sorts of situations affecting the interest of students. In any case, exception cannot be made by the Court howsoever gross is the case and give directions for "revaluation" in the face of Regulation 104 and the interpretation made by the Supreme Court in that behalf.

19. Regulation 102(2), though confers on the Board a suo motu power of amending the result, in a given case, it is open for an institution to approach the Divisional Board by making appropriate application bringing it to their notice any error, malpractice, fraud, improper conduct by which the result of their student/s is affected and leave it to the Board which under Regulation 102(2), is empowered to take appropriate decision on the recommendation of the Standing Committee. But in any case Regulation 102(2) does not confer any right on an examinee to approach the Board seeking revaluation or for any other relief by taking recourse to that regulation. The only right/remedy available to and can be exercised by a student, is the one, which is conferred by the procedure laid down under Regulation 104 seeking verification only.

20. It is now well settled that when the Supreme Court decides a principle, it would be duty of the High Court or subordinate Courts to follow the decision of the Supreme Court. The Judgment of the High Court, which refuses to follow the decision and directions of the Supreme Court or seeks to review a decision of the High Court which had been set aside by the Supreme Court, is a nullity. This settled principle of law has been reiterated by the Supreme Court in Director of Settlement AP and others Vs. M. R. Apparao and Anr., 2002(4) SCC 638. In Akshay Bhalerao's case, 2006(1) ALL MR 342, this Court had no option but to follow the decision of the Supreme Court in Paritosh Bhupesh Kurmarsheth's case. By that judgment, the Supreme Court had set aside the judgment of this Court wherein Regulation 104 was declared unconstitutional. It is on this count also, in our opinion, the view taken by the learned Division Bench in Akshay Bhalerao's case cannot be sustained.

21. We would, at this stage, like to make a reference to the exhaustive affidavit-in-reply filed by the State-Board. It is seen from the affidavit that an elaborate procedure has been laid down and followed by the Board relating to the conduct of the examinations, evaluation of the answer books and compilation and announcement of results. It is further seen that from the initial stage of issuance of hall-tickets to the intending candidates right upto the announcement of results, a well organised system of verification, checks and counter checks have been evolved by the State Board. The affidavit, further explains that as to how at every stage and step, a care has been taken to eliminate the possibility of human error on the part of examiners and malpractices on the part of examinees as well as examiners in an effective fashion. It explains in detail different stages of examinations, such as making of an application for examination, pre-listing of the candidates, issuance of hall-tickets, appointment of examiners and moderators and their functions, publishing time-table for the examination, fixing centres for examination, distribution of question papers and answers books, procedure to be followed in the examination hall and evaluation of answer books etc. To avoid any malpractice the Board in 2003 has further introduced the Bar Code system. In paragraph 4(vii) of the said affidavit, the State Board has explained the procedure of evaluation of the answer books and declaration of the results, with which we are primarily concerned in the instant petition reads thus :

"Answer books of the candidates are assessed by the Examiner. Model answers and scheme of marking is provided to each examiner and moderator. The Examiner assesses all the questions and the marks are noted on the space provided at the top of the page. The aggregate marks question-wise are thereafter noted on the front page of each answer book. The Examiner thereafter, tallies the marks and aggregate is mentioned in the column provided for assessment by the examiner. Thereafter, each of the answer book is further moderated by a Moderator, who looks into the assessment done by the Examiner and reassesses the papers if necessary. The Moderator may modify the assessment done by the Examiner. A Moderator appointed by the Board is a senior teacher to the examiner. The Board also appoints Chief Moderator who undertakes random moderation of the answer books. These Chief Moderators are appointed for each subject. Further, the answer books of first 500 students of each Divisional Board are compulsorily moderated by the Chief Moderator. It is pertinent to note that along with computerization of the records and the data, the results are also computerized. In the software used by the Board, from the March, 2002 examination, a system what known as Accident Report has been evolved. The Accident Reports by their very programming bring to attention, any obvious doubts in respect of marks allotted to any candidate. For instance, if a candidate secures 80-90% marks in various subjects, but in one of the subjects, the very candidate secures abnormally low marks say single digit marks, the software would mark the entry with an asterisk and would compile a accident report accordingly. When such reports are shown by the Computer, a manual check of the answer book is again resorted to and the accident report is dealt with and attended to accordingly. It is checked whether the compilation of the marks and transfer of the marks from the answer book to the date and the entries are properly recorded, whether all answers have been assessed. It needs to be pointed out that the examiners as well as the moderators are handed over a model answer sheet for carrying out the assessment. Thus, the standard of assessment is uniform and adhered to by the Examiners and the Moderators."

The affidavit further proceeds to explain the procedure laid down under the Regulations for verification, compilation of the marks and computerised marksheet and records, procedure evolved by the Board in cases of use of unfair means at the examination etc. We do not wish to burden this judgment in narrating the entire procedure explained in the affidavit and the precautions taken to avoid any error or malpractice. It would suffice to state that the procedure evolved by the State-Board for ensuring fairness and accuracy in evaluation of the answer books has made the system as foolproof as can be possible and it meets with our entire satisfaction and approval. Viewed against this backdrop, we do not find it possible to agree with the views expressed by the learned Division Bench in Akshay Bhalerao's case. It is true that there should be fairness and accuracy in evaluation of answer books. The system should be foolproof so far as errors are concerned, leaving no scope for genuine and bona fide grievance. However, considering the enormity of the task of evaluation discharged by the Board through the examiners appointed by it the instances of errors and irregularities are absolutely negligible. The number of students across the State appeared for S.S.C. and H.S.C. examinations held in March, 2005 was 14,98,790 and 10,11,140 respectively. If the Courts start analysing the question papers, answer books, marks secured by the students in all subjects before it, as it is done in Akshay Bhalerao's case, and hold whether a case of a student before it is an exception to the rule. Courts will be flooded with the petitions every year filed by unsatisfied students.

22. In the circumstances, we do not find it possible to uphold the view expressed by the learned Division Bench in Akshay Bhalerao's case, (2006(1) ALL MR 342) (supra). The Supreme Court in Paritosh Bhupesh Kurmarsheth's case (supra) has settled the law in unequivocal terms and in the face of that judgment it is not open for the Court to order revaluation on the ground that there are cases which amount to an exception to the rule. The question referred to for the consideration of the Full Bench accordingly stands answered in the aforesaid terms.

23. In this view of the matter, the writ petition be listed before the concerned Division Bench for decision in the light of the opinion expressed in this Judgment.

Order accordingly.