Narender Singh vs Directorate General Border ...

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*       IN THE HIGH COURT OF DELHI AT NEW DELHI

+               WRIT PETITION (CIVIL) No. 5010/2017

                                     Date of decision: 28th August, 2017

        NARENDER SINGH                                 ..... Petitioner

                           Through Ms. Tanu Priya Gupta with Ms.
                           Neetica Sharma, Advocates.

                           versus

        DIRECTORATE GENERAL BORDER SECURITY FORCE
        AND ANR.                      ..... Respondents

Through Mr. Vivek Goyal, CGSC with Mr. Harsh Pandit, Advocate for UOI.

CORAM:

HON'BLE MR. JUSTICE SANJIV KHANNA HON'BLE MR. JUSTICE NAVIN CHAWLA SANJIV KHANNA, J. (ORAL):

Counter affidavit filed has been returned under office objection. Counter affidavit has been called from the Registry and placed on record. Application seeking condonation of delay for filing the counter affidavit would be numbered. Delay in filing of counter affidavit is condoned.

2. Rejoinder is on record.

3. Narender Singh, in this writ petition, has prayed for declaration of written examination result, to enable him to participate in the interview for selection of Veterinary Assistant Surgeon (Assistant Commandant).

4. While issuing notice on the writ petition, vide order dated 30th May, 2017, the petitioner was allowed to appear before the interview panel. However, the result of the petitioner, it was directed would not be declared and would be kept in a sealed cover. No special equities would flow.

5. As per the respondents, the petitioner was disqualified as he had incorrectly marked his date of birth details in the OMR sheet. Our attention is drawn to instructions for marking, in the OMR sheet, to the following effect:-

"2. You have to fill and shade your Name, Roll No., Date of Birth, Mode, Religion, Category and Question Booklet series Code, because Information's are essential for evaluation of the Answer Sheet. Circle as printed against each should be shaded correctly, otherwise candidate may be declared fail for which candidate will be himself responsible for such mistakes.

3. Completely darken the ovals so that the number inside the ovals is not visible.

4. Darken only one circle for each question as shown in the example below. Marking should be dark and the circle is to be filled in completely as shown in the example below.

      Correct            Wrong   Wrong        Wrong        Wrong




W.P. (C) No. 5010/2017                                       Page 2 of 7
       A                                        
      A

5. No change/cutting/overwriting is permitted. Correction fluid should not be used. Hence the ovals should be filled carefully."

6. The petitioner has filed before us carbon copy of the OMR sheet. The petitioner had correctly written his date of birth as 8 th August, 1990 in the prescribed column in the OMR sheet. The petitioner like other candidates was also required to darken the relevant circles below the date of birth. The petitioner had correctly darkened the relevant circles in the columns pertaining to the date and the month. The petitioner, however, had darkened two circles in the first column relating to the year of birth, namely, "1" and "9" with reference to the first digit for the year 1990. He had correctly darkened the circles with reference to the figures "990".

7. The contention of the petitioner is that this mistake is inconsequential for the petitioner had correctly written the date of birth in his own hand writing. The petitioner was required to file documents regarding his date of birth along with the application form. The petitioner had submitted the date of birth documents which were duly verified and thereafter admit card was issued on satisfaction that the petitioner was eligible being of the prescribed age, i.e. between 22- 30 years. The date of birth was not in doubt or debate. It was obvious that the petitioner's year of birth was 1990 and no one would inspite W.P. (C) No. 5010/2017 Page 3 of 7 of two circles being marked, read the year of birth as 9990. This would be absurd.

8. Lastly, it is submitted that the petitioner had brought the mistake to the notice and knowledge of the Invigilator. The Invigilator had then informed and requisitioned the Supervisor. The Supervisor had checked the OMR sheet and observed that the mistake being minor in nature, there was no cause to worry. The respondents deny the said assertion and have filed affidavits, as directed, of the invigilator and the supervisor.

9. We have considered the contention raised by the petitioner and the respondents. In the facts of the present case, we would allow the present writ petition for several reasons. The mistake made by the petitioner in the present case was inconsequential for the documents with regard to the date of birth and age of the petitioner were examined by the respondents and only thereafter the admit card was issued. Computer checking of the OMR sheet was not for verification and checking the year of birth. In any case the correct date of birth was written in the OMR form.

10. Even on a cursory examination of the OMR sheet, a layman would have recognized and understood the said error. The year of birth was never in doubt. Every candidate appearing was born in 1900s and not in 9990s. We do not think that the mistake or lapse in marking circles 1 and 9, in the facts of the present case, would merit rejection on the ground of administrative chaos and inconvenience.

Accepting this argument of the respondent would defy common sense and stretch absurdity to level legal acceptability.

11. This Bench had the occasion to deal with a similar issue in Writ Petition (C) No. 3721/2017, decided on 31st July, 2017, Arkshit Kapoor versus Union of India and Others and it was observed that small and insignificant mistake or lapses, which do not create administrative muddle and cause disarray, could and should be ignored. Reference was made to the earlier decision in the case of Ajay Kumar Mishra versus Union of India, W.P.(C) 11642/2016, decided on 23rd December, 2016, wherein it has been observed as under.

"8. This is not a case where the petitioner had not at all been shortlisted. It is not a case where the petitioner has not been allowed to participate in the selection process. The petitioner had been allowed to participate and had emerged successful in every stage.

9. It is true that whenever any material discrepancy is noticed in the application form and/or when any suppression and/or mis-representation is detected, the candidature might be cancelled even after the application has been processed and the candidate has been allowed to participate in the selection process. However, after a candidate has participated in the selection process and cleared all the stages successfully, his candidature can only be cancelled, after careful scrutiny of the gravity of the lapse, and not for trivial omissions or errors.

XXXXX

15. As observed above, it is not the case of the respondents that the petitioner derived any advantage by entering the wrong date of birth in his online application. There is a W.P. (C) No. 5010/2017 Page 5 of 7 difference between a mere inadvertent error and misrepresentation or suppression. There could be no intentional misrepresentation as the school certificate was submitted. The penalisation of cancellation of the candidature on the ground of a typographical error is arbitrary, unreasonable harsh and disproportionate to its gravity of the lapse."

In the case of Arkshit Kapoor (supra), this Bench had distinguished an earlier decision dated 1st February, 2017 in W.P.(C) 3003/2016, UPSC versus Tarun Arora, observing that when an issue of this nature arises for consideration, a right balance between the gravity or nature of the mistake and chance to rectify the lapse and the administrative difficulties and consequences, has to be maintained. Strait jacket principle or approach would not be universally applicable. The nature of the selection process, the purpose stipulated, whether the rectification and the amendment would make the selection process unwieldy and unmanageable, are facets which must be considered.

12. When we consider the said aspects in the present case, we accept the plea of the petitioner that the lapse would be inconsequential being of a trivial nature in the given facts as the date of birth was earlier verified humanly, and not by the computer. Computer produces/derives output by following instructions as programmed. Computers do not have human intelligence and understanding. The error in the OMR sheet is not one which should, in the given facts, have the effect of denying the petitioner the right to participate in the selection process.

13. In view of the aforesaid, we are not going into the question whether or not the Invigilator and the Supervisor had examined the OMR Sheet on petitioner's request and had assured him. However, we would observe that where requests are made, perhaps the respondents can think of a remedy. We clarify that we have not issued directions in this regard, albeit made an observation and suggestion.

14. With the aforesaid discussion, we direct that the petitioner should not be treated as disqualified for having shaded the two circles of 1 and 9 in the first column relating to the year of birth. The petitioner would be accordingly considered for selection along with other candidates and if he has secured merit position, he would be considered for appointment. The writ petition is allowed in the aforesaid terms, without any order as to costs. The result under sealed cover has been produced before us and returned to the counsel for the respondents with Court seal.

SANJIV KHANNA, J.

NAVIN CHAWLA, J.

AUGUST 28, 2017 MR W.P. (C) No. 5010/2017 Page 7 of 7