Allahabad High Court
Saket Kumar And 3 Ors vs State Of U.P. And 2 Ors on 29 May, 2015
Bench: Vivek Kumar Birla
HIGH COURT OF JUDICATURE AT ALLAHABAD
Reserved
AFR
Court No. - 33
Case :- WRIT - A No. - 67782 of 2014
Petitioner :- Saket Kumar And 3 Ors
Respondent :- State Of U.P. And 2 Ors
Counsel for Petitioner :- Seemant Singh
Counsel for Respondent :- C.S.C.,Ramendra Asthana,Vijai Gautam
Connected with
1. Case :- WRIT - A No. - 14836 of 2015
Petitioner :- Saket Kumar And 5 Ors.
Respondent :- State Of U.P. And 19 Ors.
2. Case :- WRIT - A No. - 20370 of 2015
Petitioner :- Manish Lal Srivastava
Respondent :- State Of U.P. And 2 Ors.
3. Case :- WRIT - A No. - 12647 of 2015
Petitioner :- Bupesh Nath Singh And 2 Ors.
Respondent :- State Of U.P. And 2 Ors.
4. Case :- WRIT - A No. - 19827 of 2015
Petitioner :- Rajeev
Respondent :- State Of U.P. And 2 Ors.
5. Case :- WRIT - A No. - 12761 of 2015
Petitioner :- Neeraj Kumar Kushwaha And 3 Ors.
Respondent :- State Of U.P. And 2 Ors.
6. Case :- WRIT - A No. - 12992 of 2015
Petitioner :- Pramod Kumar Singh And 4 Ors.
Respondent :- State Of U.P. And 2 Ors.
7. Case :- WRIT - A No. - 734 of 2015
Petitioner :- Sanjeev Kumar Dwivedi And 2 Ors
Respondent :- State Of U.P. And 2 Ors
8. Case :- WRIT - A No. - 17866 of 2015
Petitioner :- Akhilendra Singh
Respondent :- State Of U.P. And 2 Ors.
9. Case :- WRIT - A No. - 16791 of 2015
Petitioner :- Amit Kumar And 2 Ors.
Respondent :- State Of U.P. And 2 Ors.
10. Case :- WRIT - A No. - 9938 of 2015
Petitioner :- Akhilendra Pratap Singh And 40 Ors.
Respondent :- State Of U.P. And 2 Ors.
11. Case :- WRIT - A No. - 14742 of 2015
Petitioner :- Gopesh Kumar Gaur
Respondent :- State Of U.P. And 2 Ors.
12. Case :- WRIT - A No. - 20119 of 2015
Petitioner :- Satyendra Kumar
Respondent :- State Of U.P. And 2 Ors.
13. Case :- WRIT - A No. - 13281 of 2015
Petitioner :- Sanjeev Kumar Rai And 14 Ors.
Respondent :- State Of U.P. And 2 Ors.
14. Case :- WRIT - A No. - 14744 of 2015
Petitioner :- Jitesh Sharma
Respondent :- State Of U.P. And 2 Ors.
15. Case :- WRIT - A No. - 16649 of 2015
Petitioner :- Dhananjay Pandey And 8 Ors.
Respondent :- State Of U.P. And 2 Ors.
16. Case :- WRIT - A No. - 16323 of 2015
Petitioner :- Ashu Tyagi And 4 Ors.
Respondent :- State Of U.P. And 2 Ors.
17. Case :- WRIT - A No. - 17610 of 2015
Petitioner :- Shivanand And 2 Ors.
Respondent :- State Of U.P. And 2 Ors.
18. Case :- WRIT - A No. - 19382 of 2015
Petitioner :- Harish Chandra Pandey And 3 Ors.
Respondent :- State Of U.P. And 2 Ors.
19. Case :- WRIT - A No. - 19509 of 2015
Petitioner :- Hariom Singh Rana And 2 Ors.
Respondent :- State Of U.P. And 3 Ors.
20. Case :- WRIT - A No. - 15483 of 2015
Petitioner :- Arvind Kumar Yadav And 4 Ors.
Respondent :- State Of U.P. And 2 Ors.
21. Case :- WRIT - A No. - 15487 of 2015
Petitioner :- Manish Singh
Respondent :- State Of U.P. And 2 Ors.
22. Case :- WRIT - A No. - 15715 of 2015
Petitioner :- Randhir Kumar Giri And 5 Ors.
Respondent :- State Of U.P. And Anr.
Hon'ble Vivek Kumar Birla,J.
1. All these writ petitions involve common facts, questions of law and the controversy to be decided, hence, as agreed by the learned counsel for the parties, they have been heard together and are being decided by a common judgment.
2. Heard Sri Ashok Khare, learned Senior Advocate and Sri Seemant Singh, Advocate for the petitioners and Sri Shashi Nandan, learned Senior Advocate, Sri Gajendra Pratap, learned Senior Advocate, Sri R.K. Ojha, learned Senior Advocate, Sri Shailendra, Sri K.M. Asthana, Sri Abhishek Srivastava, learned counsel for the newly impleaded respondents and Sri Vijai Bahadur Singh, learned Advocate General assisted by Dr. Y.K. Srivastava and Sri Udai Pratap Singh, learned Standing Counsel. Other counsel have adopted their arguments.
3. The writ petitions as per the relief sought can be broadly divided into three groups. In the first group of writ petitions, a writ of mandamus commanding the respondents to exclude the candidates who have used whitener/blade in their answer script (OMR sheets) of the main examination for selection to the post of Sub-Inspector (Civil Police) and Platoon Commander, P.A.C. Joint Examination, 2011 held on 14th September, 2014 from the result of main examination declared on 20.10.2014 by the U.P. Police Recruitment and Promotion Board, Lucknow (hereinafter referred to as the Board) has been sought. A further prayer to issue a writ of mandamus, commanding the respondents not to allow such candidates, who have used whitener/blade in their answer scripts (OMR sheets) of the main written examination held on 14th September, 2014, being contrary to the clear instructions issued by the Board, in the next level of recruitment, i.e., group discussion, which is going to commence from 11th December, 2014, has also been made.
4. In the second group of petitions, a prayer for quashing the order dated 1.2.2015 passed by the Under Secretary, Recruitment Board by which the Board has decided to constitute a committee to examine the use of whitener/blade by the candidates while attempting the main examination, has been sought. It is further prayed that the respondents be directed not to revise or interfere in the result of main written examination held on 14.9.2014, which has already concluded and further, not to exclude the OMR sheet of the petitioners on the foundation of Clause 7.3 of the instruction dated 2.9.2014 and that the final result of the petitioners be declared. The leading petition of this group being Writ Petition No. 9938 of 2015 was argued by Sri K.M. Asthana, learned Advocate and while arguing the same it was submitted by him that he is not pressing his first prayer. In so far as the third prayer of this group is concerned, i.e., to declare the result, the same has become infructuous as the result had already been declared on 16.3.2015.
5. In the third group of petitions, it has been prayed that the final result declared on 16.3.2015 be quashed to the extent of excluding the candidates who have used whitener/blade while attempting main written examination.
6. There are other petitions also, where the prayers are differently worded. In Writ Petition No. 13281 of 2015, it was prayed by the selected candidates that they may not be ousted from the zone of consideration and not to treat them as ineligible while declaring result.
7. In Writ Petition No. 15483 of 2015, a writ of mandamus directing the respondent no. 2 to re-scrutinize the result of Mains Written Exam with regard to Sub Inspector Civil Police/Platoon Commander, Provincial Armed Constabulary Direct Recruitment Examination - 2011 after deleting the marks, if any, awarded to the candidates for the question, for the answers where whitener or blade has been used by candidate, irrespective of the fact as to whether the machine has read that entry or not and also to decide the representation of the petitioner in this regard, has been sought.
8. For the purpose of deciding the present controversy, Writ Petition No. 67782 of 2014, Saket Kumar & others Vs. State of U.P. and others, has been taken up as leading case and has been argued by all the counsels for this purpose.
9. The facts, in short, are that an advertisement dated 19.5.2011 was issued by the Board inviting application from eligible candidates for selection to the post of Sub-Inspector, Civil Police and Platoon Commander, P.A.C. The total number of posts was 4010 out of which number of posts in respect of Sub-Inspector, Civil Police was 3698 and in respect of Platoon Commander, P.A.C. it was 312. Vacancies are shown as under:
S. No.
Category
Sub-Inspector Civil Police
Platoon Commander
General
Other Backward Classes
Scheduled Caste
Scheduled Tribe
Total
10. Thereafter a physical standard test was held and after qualifying the same, the preliminary written test was held on 11.12.2011, result whereof was declared on 1.1.2013. Subsequently physical efficiency test (PET) was held from 5th February, 2013 to 22nd February, 2013. Thereafter, on 14th September, 2014, the main written examination (hereinafter referred to as main examination) was held. The main examination was of 400 marks out of which objective type examination on OMR sheet was of 300 marks consisting of 150 questions. The theoretical examination was of 100 marks. It is not in dispute that all the petitioners, as well as, impleaded respondents were declared successful upto the main examination and the result was declared on the Website of the Board on 20.10.2014. The result could be seen on the Website by the candidates by giving their roll number and only individual result was shown on the website. All through, the examinations were conducted on OMR (Optical Mark Recognition) sheets and right from the initial stage, i.e., with the issuance of admit card it was provided that the use of whitener/blade on OMR sheet was prohibited.
11. The case of the petitioners is that on admit card, question paper as well as on OMR sheet of the main examination it was provided that the use of whitener/blade etc. is totally prohibited. They subsequently came to know that about 30% of the candidates have used whitener/blade and they have secured very high marks whereas the petitioners, who have religiously followed the instructions and did not use whitener/blade, were put to disadvantage as had they been aware of the fact that they will not be disqualified in case they use whitener/blade, they could have also used whitener/blade but they did not do so because of clear instructions provided on the admit card, question paper and the answer sheet. For this purpose an information was sought under the Right to Information Act, 2005 (hereinafter referred to as 'RTI Act'), which was supplied on 13.11.2014 and it was informed that the use of whitener/blade was absolutely prohibited and that the answer sheets of such candidates will not be evaluated. This information was supplied on the basis of Clause 7.3 of the instructions. A representation was filed before the Board raising their grievance that the copies of the candidates who have used whitener/blade should be excluded from the final result of the examination and they shall be excluded from the zone of consideration, however nothing was done.
12. A preliminary objection has been raised by the selected respondent candidates regarding maintainability of the present petition on the ground that the petitioners have appeared in the preliminary examination held on 11.12.2011, result whereof was declared on 1.1.2013 and subsequently, they have appeared in the main examination, result of which was declared on 20.10.2014; without challenging the use of whitener/blade/eraser etc. at the preliminary examination stage and unless the result is challenged, no relief to exclude the candidates who have used whitener/blade/eraser etc., can be granted; the selected candidates have not been impleaded; the very foundation of the present petition is the information dated 13.11.2014 sought under the RTI Act, which cannot form basis for filing the present petition; paragraph 7.3 of the instructions dated 2.9.2014 was a confidential document, which could not have been used in the present petition and under any circumstances, the same was not binding on the respondent-candidates; the prohibition mentioned on the admit card, question papers and on the OMR sheet regarding prohibition on use of whitener/blade/eraser etc. is directory in nature as no penalty has been provided in any of the said clauses; the use of whitener/blade/eraser etc. does not fall within the category of unfair means; and in case the provision is uniformly applied, none of the candidates is affected individually; the petitioners themselves have participated in the process of selection on the same grounds and instructions and now they cannot be allowed to challenge the same process simply because of the reason that their prospects of selection is minimized because of better marks of respondent-candidates.
13. While dealing with the preliminary objection, it was noticed that the preliminary objection was not seriously raised by most of the counsels appearing for the respondents including the State and rightly so. However, the fact remains that the preliminary objection was raised.
14. Replying to the preliminary objection, it was submitted that the petitioners have already impleaded some of the finally selected candidates as the respondents in Writ Petition No. 14836 of 2015, Saket Kumar and others Vs. State of U.P. and others, by which the final result dated 16.3.2015 declared by the Board has been challenged. It was submitted that the combined result of the candidates was never released by the Board and only individual result could be seen by feeding own roll number and hence, it was not possible to challenge the entire result in the absence of the details available after declaration of the result of the main examination on 20.10.2014. The submission is that under these circumstances only exclusion of such candidates, who have used whitener/blade, could have been sought by seeking a writ of mandamus only, which was filed before declaration of the final result on 16.3.2015, and in any case, now the final result has been declared, which is also under challenge. Therefore, the submission is that the preliminary objection has now become redundant, and at the best, is only academic in nature and maintainability of the petition is not affected. Learned counsel for the petitioners further submitted that even otherwise the scope of Article 226 of the Constitution of India is not limited to issuing of writs only and writ of any other nature can also be issued as it is clear from the language of Article 226 (i) itself.
15. In this regard, a reference may be made to a decision of the Hon'ble Apex Court in the case of Prabodh Verma Vs. State of U.P. And others 1984 (4) SCC 251. Relevant paragraphs 29, 36, 37 and 38 are quoted as under:
"29. The second defect was in one of the main reliefs asked for. The first two prayers in the said petition were the substantive prayers and were as follows:
"(i) To issue writ, order or direction in the nature of certiorari calling for the records of the case and quashing the U.P. Ordinance No. 11 of 1978 and the telex dated 18th October 1978 of Education Secretary, U.P., Lucknow and telex dated 19th October 1978 of the Additional Director of Education, Uttar Pradesh, Allahabad.
(ii) To issue a writ of mandamus, order or direction in the nature of mandamus directing the Respondents not to implement the ordinance No.22 of 1978 or to make any appointment on the basis of ordinance No.22 of 1978."
While there can be no fault found with the second prayer, it is somewhat astonishing to find a prayer asking for "a writ in the nature of certiorari calling for the records of the case and quashing the U P. Ordinance No.22 of 1978". The claiming of such a relief shows a lack of understanding of the true nature of the writ of certiorari.
36. In India, prior to the Constitution, the power to issue prerogative writs was vested only in three High Courts, that is, the High Courts established by Letters Patent issued by Queen Victoria under authority given by the Indian High Courts Act, 1861 (24 & 25 Vict c, 104) for the establishment of the High Courts of Judicature at Fort William in Bengal and at Madras and at Bombay for these three presidencies, namely, the High Courts of Calcutta, Madras and Bombay. Hence this Act is generally called the Charter Act and the High Courts established there under the Chartered High Courts. These High Courts were the successors so far as their original jurisdictions were concerned of the Supreme Courts which were established in these three Presidency- towns and inherited from those courts the powers of the Courts of King's Bench which included the power to issue prerogative writs, Apart from these three High Courts none of the other High Courts in India possessed this power. The position was changed when the Constitution of India came into force. Article 225 continues the jurisdiction of existing High Courts. Article 226, however, confers upon every High Court the power to issue to any person or authority, including in proper cases, any Government, within the territories in relation to which it exercises jurisdiction, "directions, orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari or any of them, for the enforcement of the rights 249 conferred by Part III or for any other purpose". It may be mentioned that under Article 32 of the Constitution, the same power as has been conferred upon the High Courts is conferred upon this Court without any restriction as to territorial jurisdiction but, unlike the High Court, restricted only to the enforcement of any of the rights conferred by Part III of the Constitution, namely, the Fundamental Rights. Referring to Article 226, this Court in Dwarka nath, Hindu Undivided Family v. Income Tax Officer, Special Circle. Kanpur and another said:
"This article is couched in comprehensive phraseology and it ex-facie confers a wide power on the High Courts to reach injustice wherever it is found. The Constitution designedly used a wide language in describing the nature of the power, the purpose for which and the person or authority against whom it can be exercised. It can issue writs in the nature of prerogative writs as understood in England but the scope of those writs also is widened by the use of the expression `nature', for the said expression does not equate the writs that can be issued in India with those in England, but only draws an analogy from them, That apart High Courts can also issue directions, orders or writs other than the prerogative writs. It enables the high Courts to mould the reliefs to meet the peculiar and complicated requirements of this country. Any attempt to equate the scope of the power of the High Court under Art. 226 of the Constitution with that of the English Courts to issue prerogative writs is to introduce the unnecessary procedural restrictions grown over the years in a comparatively small country like England with a unitary form of government in to a vast country like India functioning under a federal structure, such a construction defeats the purpose of the article itself. To say this is not to say that the High Courts can function arbitrarily under this article. Some limitations are implicit in the article and others may be evolved to direct the article through the defined channels."
37. The fact that the High Courts and a fortiori this Court have power to mould the reliefs to meet the requirements of each case does not mean that the draftsman of a writ petition should not apply his mind to the proper relief which should be asked for and throw the entire burden of it upon the Court. An Advocate owes a duty to his client as well as to the Court a duty to his client to give of his best to the case which he has undertaken to conduct for his client and a duty to assist the Court to the utmost of his skill and ability in the proper and satisfactory administration of justice. In our system of administration of justice the courts have a right to receive assistance from the Bar and it is the duty of the advocate who drafts a writ petition or any other pleading to ask for appropriate reliefs. The true nature of a writ of certiorari has been pointed out this by Court In several decisions. We need refer to only one of them, namely, Udit Narain Singh Malpaharia v. Additional Member, Board of Revenue, Bihar, In that case Subba Rao. J. as he then was, speaking for the court, said:
Certiorari lies to remove for the purpose of quashing the proceedings of inferior courts of record or other persons or bodies exercising judicial or quasi judicial functions. It is not necessary for the purpose of this appeal to notice the distinction between a writ of certiorari and a writ in the nature of certiorari: in either case the High Court directs an inferior tribunal or authority to transmit to itself the record of proceedings pending there in for scrutiny and, if necessary, for quashing the same.
38. A writ in the nature of certiorari is thus a wholly inappropriate relief to ask for when the constitutional validity of a legislative measure is challenged and it is surprising to find that in spite of repeated pronouncements of this Court as to the true nature of this writ it should have been asked for in the Sangh's petition. As pointed out in Dwarkanath's case, under Article 226 the High Courts have the power to issue directions, orders and writs, including prerogative writs, This power includes the giving of declarations as also consequential reliefs including relief by way of injunction. The proper relief for the petitioners in the Sangh's petition to have asked was a declaration that U.P. Ordinance No, 22 of 1978 was unconstitutional and void and, if a consequential relief was thought necessary, a writ of mandamus or writ in the nature of mandamus or a direction, order or injunction restraining the State and its officers from enforcing or giving effect to the provisions of 251 that ordinance. The High Court granted the proper relief by declaring that Ordinance to be void but it should have, before proceeding to hear the writ petition, insisted that the petitioners should set their house in order by amending the petition and praying for proper reliefs. The High Court was too indulgent in this matter. After all, it was not a petition from a Prisoner languishing in jail or from a bonded labourer or a party in person or by a public spirited citizen seeking to bring a gross injustice to the notice of the court Here, the High Court had before it as the main petitioner a union which had taken collective action to enforce its demands and had defied the Government by flouting its orders and an ordinance promulgated by the Governor, namely, U.P. Ordinance No. 25 of 1977 and had by reason of its collective might ultimately made the Government come to terms with it. The petitioners were represented by well known Counsel, one of them practising in this Court. It is true that neither this Court should dismiss a writ petition on a mere technicality or just because a proper relief is not asked for; but from this it does not follow that it should condone every kind of laxity. We would not have dwelt upon this aspect of the case but for the fact that we find that laxity in drafting all types of pleadings is becoming the rule and a well-drafted pleading, an exception. An ill-drafted pleading is an offspring of the union of carelessness with imprecise thinking and its brothers are slipshod preparation of the case and rambling and irrelevant arguments leading to waste of time which the courts can ill afford by reason of their overcrowded dockets." (emphasis supplied)
16. Insofar as non-impleadment of the candidates who might have been affected by the result of the present petition, suffice to say that they have already sought their impleadment and also stands impleaded, therefore, this prayer is now redundant. It was further submitted that it is the settled law that even in a case where such candidates are not impleaded as respondents but there is sufficient publicity of the litigation pending before the Court of Law and under such circumstances any such defect is not fatal to the maintainability of the petition and the petition is maintainable as it is the choice of the candidates who might be affected are not coming forward to contest the same. In this regard, judgment of the Hon'ble Apex Court in the case of Secretary, Tamil Nadu Public Service Commission Vs. A.B. Natrajan, 2014 (14) SCC 95 may be referred to.
17. In absence of the availability of combined result of all candidates, it could not have been possible for the petitioner to seek quashing of result. Further, the final result was admittedly not declared till filing of the petition, hence only prayer available was to seek relief by way of issuing a writ of mandamus by exclusion of candidates, who have used whitener/blade. Moreover, it is settled law that the High Court has jurisdiction to mould relief under Article 226 of the Constitution of India to serve the ends of justice. Further, since in Writ Petition No. 14836 of 2015 (Saket Kumar vs. State of U.P. and others), relief of quashing of the result to the extent of such candidates, has also been made therefore, the preliminary objection is liable to be rejected. Consequently, this preliminary objection stands overruled.
18. A preliminary objection regarding second petition being Writ Petition No. 14836 of 2015 filed by Saket Kumar, who had filed leading Writ Petition No. 67782 of 2014, has also been raised that the same challenging the final result dated 16.3.2015, is not maintainable and the petitioners should have amended the first writ petition. The submission was that the second petition was barred by Order II Rule 2 of Code of Civil Procedure which provides that suit is to include the whole claim.
19. In my opinion the objection is purely technical and since other petitions have also been filed challenging the final result dated 16.3.2015, consideration of the relief claimed cannot be refused by this Court. Needless to say that Order II Rule 2 of the Civil Procedure Code (C.P.C.) does not apply to other petitioners, who have filed separate petitions challenging the final result dated 16.3.2015. It is a settled law that while doing substantial justice this Court should not refuse consideration of the issue involved on mere technical grounds, more so when C.P.C. is not strictly applicable in writ proceedings and only broad principles are to be followed.
20. One more preliminary objection was raised on the ground that the instructions dated 2.9.2014 issued by the Board to Centre Superintendent were confidential in nature and cannot be used by the petitioner for maintaining this petition.
21. In my opinion this argument is fallacious, inasmuch as heading of Clause 7 of the instructions dated 2.9.2014 clearly indicates that the candidates were to be instructed about the prohibition of use of whitener or blade. Instruction 7.3, which is part of Clause 7, clearly provides that bringing whitener or blade etc. inside the examination hall and use thereof was completely prohibited and it was provided that the answer sheet of those, who violate this instruction shall not be evaluated. The nature of confidentiality of any such instruction/document which had been marked as confidential remains confidential only till it was opened and used by the Centre Superintendent. Any information supplied confidentially to Centre Superintendent for the purpose of making it public to the candidates no longer remains confidential, the movement of such instructions are given to the candidates. That apart, the nature of such document clearly indicates that the confidentiality of this document cannot be equated with a document which has been marked confidential for the purpose of utilisation within a small group of officers/officials/persons dealing with any particular issue. The confidentiality of this document cannot be stretched to the extent of being a secret or classified document which is prohibited from being made public. Therefore, the document even if marked confidential now, after holding of the examination, cannot be treated as confidential. More so, when Clause 7.3 of the instruction dated 2.9.2014 was referred to in the information dated 13.11.2014 itself supplied under the RTI Act.
22. Further, in any case the State Authorities, including the Board, are undisputedly bound by their own instructions. Insofar as the use of information supplied under the RTI Act dated 13.11.2014 is concerned, suffice to say that the very object of the RTI Act itself is to get the information, which otherwise may not be made available to a person affected for its own utilisation or for public cause. Further this information was supplied prior to declaration of result on 20.10.2014 before any discussion. Therefore, the objection regarding maintainability of the petition on the ground of utilisation of information supplied under the RTI Act, 2005 is liable to be rejected. The basic object of RTI Act is to empower the citizens, to promote transparency and accountability in the working of the Government, to contain corruption, and to enhance people's participation in democratic process thereby making our democracy work for the people in a real sense. It goes without saying that an informed citizen is better equipped to keep necessary vigil on the instruments of governance and make the government more accountable to the governed. The Act is a big step towards making the citizens informed about the activities of the Government.
23. Consequently, I do not find any force in preliminary objections and accordingly, the same stands rejected.
24. The State has chosen to file a short counter affidavit concentrating on the point that the mechanism of taking exam on OMR sheet, which is scanned by machine is an internationally accepted method. The same is also free from human intervention. Reasons for putting prohibition on use of material like whitener or blade etc. by the candidate while filling in OMR sheet is prohibited, are detailed in paragraph 9. In paragraph 11, stand taken by the State is that the restriction on the use of whitener/blade/eraser/pencil/gel pen/sketch pen and ink pen is made by way of general directives issued to the candidates as a measure of abundant caution, which is based on scientific reasoning. The candidates, who make use of whitener/blade/eraser for altering/correcting the response submitted on the OMR sheets, are ultimately running the risk of having their answer put under the category of multiple response and not being evaluated at all. In paragraph 12, stand taken is that such prohibition on use of such material is by way of a measure of abundant caution and the same does not entail cancellation of the candidature of the candidate who has used it. It has been highlighted that the candidature of a candidate is liable to be cancelled for the reasons; (i) Impersonation, (ii) Use of unfair means, (iii) Use of mobile phone, pager etc., which may be used for copying, (iv) writing one's name or making any other mark of identification on OMR sheet, and (v) carrying away by the candidate with the original copy of OMR answering sheet. In paragraph 14, stand taken is that the evaluation of OMR sheet by machine is to ensure maximum objectivity, accuracy, transparency and fairness in evaluation process. The process of segregation of the answer sheets on the basis of the use of Whitener/Blade/Eraser manually may introduce a process of manual intervention creating subjectivity and diluting the process of maximum objectivity in the scanning procedure, which may create unending disputes and controversies with regard to the procedure adopted for the purpose of segregation of the answer sheets. In paragraphs 15 and 16, it has been asserted that in various objective examinations like Union Public Service Commission, New Delhi and Union Public Service Commission, Allahabad, there is no mechanism whereby OMR sheet wherein the prohibited substances like Whitener/ Blade/Eraser etc. have been used, are identified or segregated or the candidates using such prohibited substances are subjected to any disqualification or penalty or rejection of their candidature. It has been further stated that option to a candidate to change his answer is only based on his personal discretion and the same in no manner increases chance of his success, which ultimately depends on the over all performance of the candidate at different stages of examination. The need of urgency in finalizing the selection has been highlighted in the light of unfilled vacancies on various posts as the selection process involved in the present litigation is continuing since the year 2011 and four years have already passed in the light of the judgement of this Court in Criminal Writ (PIL) No. 1797 of 2011 (Mohammad Qasim vs. State of UP and others).
25. In short, from the short counter affidavit filed by the State, it appears that the State is defending the use of whitener/blade/eraser etc. on three grounds, namely, (i) the process of evaluation to scanning machine of OMR sheets used by the candidates in the examination is the best method available; (ii) the prohibition is as a measure of abundant caution as the candidate may not get marks for such answer on which any of such material is used; and (iii) use of whitener/blade/eraser etc. does not entail any cancellation of the candidature and the process of selection of answer sheet on the basis of use of whitener/blade/eraser etc. may introduce a process of manual intervention creating subjectivity and diluting the process of maximum objectivity in the scanning procedure and will thus affect the accuracy, transparency and fairness in evaluation process.
26. Before proceeding further, it can be noted that the stand taken in the short counter affidavit is contrary to the stand taken by the State in its instructions taken in Writ Petition No. 734 of 2015 (Sanjeev Kumar vs. State of UP), which are part of record and the narrative supplied to the learned Standing Counsel for the purpose of filing counter affidavit in Writ Petition No. 67782 of 2014. This shift in stand now taken in the short counter affidavit is also contrary to the information supplied under the RTI Act, which is also part of record.
27. Since the bunch of writ petitions is being disposed of by a common judgement on the basis of the above noted leading petition, counter affidavit filed by the selected candidates, who have admittedly used whitener/blade/eraser etc. is being given in a consolidated form as large number of impleadment applications and counter affidavits have been filed, which are not required to be quoted for the purpose of deciding the present controversy as the common grounds have been taken in all the counter affidavits. The stand of candidates using whitener/blade/eraser etc. (hereinafter referred to as the ''respondent-candidates') can be summarized as under, however since preliminary objection has already been dealt with, the same is not being repeated.
28. It has been asserted in the counter affidavit filed by the respondent-candidates that the Board is a statutory body and the entire selection is held in accordance with the statutory provisions made under the Rules of 2008, which do not prohibit or place restriction upon the candidature merely because of use of whitener/blade/eraser etc; the answering respondents have gone through the instructions given at the various stages of the examinations and none of these instructions contemplate disqualification for use of whitener/blade/eraser etc. on the OMR sheet; along with the instructions supplied with the preliminary examination, rational for prohibiting use of whitener/blade/eraser etc. has been mentioned that since the OMR sheet will be read by a machine, the answers given by the candidates using such materials, may not be read by the machine; the instructions dated 2.9.2014 are confidential in nature and such instructions and circular dated 13.11.2014 were never brought to the notice of the answering candidates; even otherwise such instructions are irrelevant and of no consequence particularly when the answering candidates were permitted to appear in main examination and their OMR sheets were also evaluated; the Board is not empowered to over-reach the provisions of the Rules of 2008 by amending Rules of the game midway by introducing certain new conditions, which does not form subject matter of advertisement and does not have statutory backing; the Rules of 2008 do not contemplate any fresh guidelines and if any such instruction is given, the same will be contrary to Rule 15 (f) of the Rules of 2008; it was never communicated, publicized or intimated in any manner that the use of whitener/blade/eraser etc. would disentitle them for evaluation of answer/OMR sheet or for cancellation of candidature or that they would be excluded from the final result; since the scanning machine itself will not read the answers where whitener/blade/eraser etc. have been used, hence it was of no benefit to the candidates for using whitener/blade/eraser on the OMR sheet in the examination.
29. From the stand taken in the counter affidavit by the respondent-candidates, it is thus, clear that they have come out with a case that the prohibition on use of whitener/blade/eraser etc. was not fatal and in absence of any penalty clause or instructions given at the initial stage itself, they cannot be excluded from the final result of successful candidates. Needless to point out that all the respondent-candidates have admitted that they have actually used whitener/blade/eraser etc. while answering the question on OMR sheets.
30. The rejoinder affidavits have been filed by the petitioners, which in fact reiterates the stand taken in the petition refuting all assertions made in the counter affidavit including the maintainability of the petition.
31. To appreciate the controversy involved in the present petition and the facts as highlighted by both sides, it is necessary to extensively consider the constitution of the Board; instructions issued on the admit card of the preliminary examination; instructions issued on the question paper of the preliminary examination; instructions issued on the question paper of the main examination; and the instructions dated 2nd September, 2014 issued to the Centre Superintendent for conducting main examination. For convenience they are quoted as under:
EkgRoiw.kZ vuqns'k
1- iz'u iqfLrdk [kksyus ds fy, mlds doj ist ij yxh dkxt dh lhy dks QkM+uk gksxkA [kqyh gqbZ ;k fcuk LVhdj&lhy dh iqfLrdk Lohdkj u djsaA
2- iz'u iqfLrdk ds [kksyus ds rqjUr ckn tkap djds ns[k ysa fd blesa 150 iz'u fcUkk MqIyhdsV uEcj ds dzec) gSA iz'u iqfLrdk esa dksbZ iz'u fcuk Nik] dVk &QVk ;k NwVk gqvk gS rks rqjUr iz'u iqfLrdk d{k fujh{kd dks fn[kkdj nwljh iz'u iqfLrdk ,oa mRrj i=d dk lsV izkIr dj ysaA ;fn vH;FkhZ }kjk nwljh iz'u iqfLrdk ugha yh tkrh gSa ,oa =qfViw.kZ iz'u iqfLrdk ls ijh{kk nh tkrh gS rks blds fy, vH;FkhZ Loa; mRrjnk;h gksaxsA
3- bl iz'u iqfLrdk esa dqy 150 iz'u gSA izR;sd iz'u ds pkj oSdfYid mRrj fn;s x;s gSA buesa ls vH;FkhZ ftl mRrj dks lgh le>rs gks pqu ysaA ;fn ,slk yxs fd ,d ls vf/kd mRrj lgh gSa rks ml mRrj dks mRRkj i=d ij vafdr djsa tks vH;FkhZ dks lcls vf/kd lgh yxsA izR;sd iz'u ds fy, dsoy ,d gh mRrj pqusa rFkk vks-,e-vkj- mRrj i=d esa ml iz'u ds lkeus fn;s x;s lEcfU/kr xksys dks lgh rjg ls iwjk&iwjk dkys vFkok uhys cky IokbUV isu ls HkjsaA isafly dk iz;ksx oftZr gSA xyr rjhds ls Hkjs x;s xksys ds fy, dksbZ vad ugha fn;s tk;saxsA ,d ls vf/kd xksys Hkjus ij iz'u ds mRrj dks xyr ekuk tk;sxkA OgkbVuj] CysM vkfn dk iz;ksx oftZr gSA izR;sd lgh mRrj ds fy, 2 vad iznku fd;s tk;saxs rFkk xyr mRrj ds fy, dksbZ _.kkRed vad ugha fn;s tk;saxsA
4- bl ijh{kk esa lQy gksus ds fy, vH;FkhZ dks iz'u&iqfLrdk ds izR;sd Hkkx ¼fo"k;½ esa U;wure 50 izfr'kr vad izkIr djuk vfuok;Z gSA
5- iz'u iqfLrdk ds doj ist ij vFkok vUnj dgha Hkh dqN u fy[ksaA ;fn jQ dk;Z djuk pkgrs gSa rks iz'u iqfLrdk ds vUr es fn;s x;s jQ 'khV dk iz;ksx djsaA
6- ijh{kk d{k esa ykWx & Vscy] dSydqysVj] istj] eksckby Qksu ;k vU; bYsDVªkWfuDl xStsV~l dk iz;ksx oftZr gSA
7- vH;FkhZ dks iz'u iqfLrdk o vks-,e-vkj- mRrj i=d dh vH;FkhZ izfr vius lkFk ys tkus dh vuqefr gSA ijh{kk dh lekfIr ds mijkUr vH;kFkhZ mRrj i=d dh f}rh; dkcZu izfr vius ikl j[k ysa rFkk 'ks"k nksuks izfr;kW d{k fujh{kd dks gLrxr djsaA mRrj i=d dh ewy izfr vH;FkhZ }kjk vius lkFk ysdj pys tkus ij mldk vH;FkZu fujLr dj fn;k tk;sxkA ;fn vH;FkhZ cksMZ ds fy, fu/kkZfjr izFke dkcZu izfr vius lkFk ysdj pyk tkrk gS rks vH;FkhZ dks ewy izfr esa vkbZ fdlh fHkUurk ij izfrokn dk dksbZ volj ugha gksxkA
English translation by the Court
1. To open Question Booklet, the paper-seal on its cover page will have to be torn off. Don't accept the Booklet if the seal is broken or is without sticker-seal.
2. Immediately after opening the Question Booklet, make sure that it has 150 questions in serial with no duplicate number. If any question is not printed or cut/torn or left out, then immediately show the Question Booklet to room invigilator and obtain another set of Question Booklet and Answer Sheet. If no other Question Booklet is obtained by the candidate and he takes part in the examination with Question Booklet having errors, then the candidate shall himself be responsible for the same.
3. This question-booklet contains total 150 questions. Each question has four alternative answers. Out of them, a candidate may choose the answer which he considers to be correct. If more than one answer appear to be correct, only such an answer be marked on the Answer Sheet as the candidate takes to be most appropriate. Choose only one answer for a question and properly & completely blacken the concerned circle provided against the question in the O.M.R. Sheet, using black or blue ball point pen. Use of pencil is prohibited. No marks shall be awarded for filling the circle in a wrong manner. The use of whitener, blade, etc. is prohibited. Two marks shall be awarded for each correct answer and there shall not be any negative marking for a wrong answer.
4. To qualify in this examination, it is mandatory for the candidate to obtain minimum 50% marks in each part (subject) of the Question Booklet.
5. Don't write anything anywhere on the cover page or inside the Question Booklet. If the candidate wants to do rough work, then use the rough sheet provided at the end of Question Booklet.
6. The use of log-table, calculator, pager, mobile phone or other electronic gadgets in examination room, is prohibited.
7. The candidate is allowed to take along Question Booklet and candidate's copy of O.M.R. Answer Sheet with him. Once the examination is over, the candidate shall keep the second carbon copy of the Answer Sheet and hand over the remaining two copies to room invigilator. In case of the candidate going away with the original copy of Answer Sheet, his candidature shall be cancelled. If the candidate takes along the first carbon copy meant for the Board, then the candidate shall not have any opportunity to raise any objection over any discrepancy arisen in the original copy.
(emphasis supplied)
32. The information supplied under the RTI Act, 2005 by reply dated 13.11.2014 is also quoted as under:
mRrj izns'k iqfyl HkrhZ ,oa izksUufr cksMZ y[kuÅ
¼rqylh xaxk dkEiysDl 19 lh fo/kku lHkk ekxZ y[kuŽ
i= la[;k && ihvkjihch] 7,@757&2014 fnukad 13&11&14
lsok esa]
Jh vkse izdk'k ;kno]
fuoklh& 82 lh] jlwykckn rsfy;jxat]
tuin& bykgkcknA
d`i;k lwpuk dk vf/kdkj vf/kfu;e 2005 ds vUrxZr izsf"kr vius izkFkZuk i= fnukad 13-10-2014 dk lUnHkZ xzg.k djsA ftlds ek/;e ls eq[; ijh{kk ¼njksxk ijh{kk 2011½ esa fnukad 14&09&2014 es fdrus vH;fFkZ;ksa us lQsnk dk iz;ksx fd;k gS] lQsnk dk iz;ksx fd;s x;s mRrj ij vad fn;s x;s vFkok ugh ds lEcU/k esa lwpuk pkgh xbZ gSA okafNr lwpuk fuEuor~ gSA
fcUnq la[;k 1] 2 o 3 m0 fu0 uk0 iq0 ,oa IykVwu dek.Mj ih,lh lh/kh HkrhZ dh eq[; fyf[kr ijh{kk ds lEcU/k esa funsZ'k iqfLrdk ds fcUnq la0 7-3 esa Li"V :i ls vafdr gSa fd ijh{kk d{k esa lQsnk] CysM vkfn dk ykuk o iz;ksx djuk iw.kZ :i ls oftZr gSaA bl funsZ'k dk mYya?ku djus okys ijh{kkfFkZ;ksa dh mRrj iqfLrdkvksa dk ewY;kadu ugh gksxkA
tu lwpuk vf/kdkjh
m0 iz0 iqfyl HkrhZ ,oa izksUufr cksMZ
y[kuÅ
English translation by the Court
The Uttar Pradesh Police Recruitment and Promotion Board, Lucknow
(Tulsi Ganga Complex 19C Vidhan Sabha Marg, Lucknow)
Letter No. PRPB, 7A/757-2014
Dated: 13.11.14
To,
Shri Om Prakash Yadav,
Resident of 82C, Rasoolabad, Teliarganj,
District Allahabad
Please have reference to your application dated 13.10.2014 under The Right to Information Act, 2005 through which information is sought as to how many candidates have used whitener in the written examination (Sub-Inspector Examination 2011) held on 14.09.2014, and as to whether or not marks have been awarded for the answers on which whitener was used. The desired information is as under:
In relation to points 1, 2 and 3, it is clearly mentioned at point 7.3 of the instruction booklet for main written examination of Sub-Inspector, Civil Police and Platoon Commandar PAC Direct Recruitment that carrying and using whitener, blade etc. in the examination hall is completely prohibited. Answer-sheets of the candidates violating this instruction shall not be evaluated.
Public Relation Officer
The U.P. Police Recruitment
and Promotion Board,
Lucknow
(emphasis supplied)
33. A perusal of the order dated 9.1.2015, clearly indicates that the learned Standing Counsel was granted three weeks time to file counter affidavit/seek instructions and it was provided that the result of the said selection shall abide by the outcome of the writ petition. Subsequently, on the next date fixed i.e. on 11.2.2015 learned Standing Counsel on instructions submitted that on 1.2.2015 two Screening Committees have been constituted to look into the grievances raised in the petition and the instructions were taken on record. The matter was directed to be placed on 11th March, 2015. A direction was issued to the Board to produce the original record alongwith the minutes of the Committee constituted in pursuance to the order dated 1.2.2015 on the next date and it was further directed that the respondents shall also produce the OMR sheets which have been examined by the aforesaid two Committees wherein whitener/blade has been used. A perusal of the instruction clearly shows that apart from the constitution of such two Screening Committees, the State authorities have clearly stated that on scrutiny of OMR sheets of eight candidates whose names were mentioned in Writ Petition No. 734 of 2015, Sanjeev Kumar Dwivedi & others Vs. State of U.P. and others it was found that six candidates have used whitener/blade which clearly indicates that prohibited material like whitener or blade has been used and therefore, it cannot be overruled that other candidates may have also used this prohibited material for the purpose of changing answers. In view of this fact, an undertaking was given that OMR sheets of all the candidates appearing in the main examination shall be physically verified and the candidature of those who have used the prohibited material like whitener or blade shall be cancelled. This undertaking is a part of record of this Court as mentioned in the order dated 11.2.2015. In the counter affidavit filed by the newly impleaded respondents through their counsel, Sri Manish Goel, a copy of the narrative of the State authority for filing counter affidavit in Writ Petition No. 67782 of 2014 has been placed on record. At page 84 of the counter affidavit, the narrative for replying paragraph 3-11 and 24-34, which has been signed by three officers of the Board, clearly indicates that the candidature of candidates using prohibited material like whitener or blade shall be cancelled and in view of such undertaking the writ petition should be dismissed.
34. The object of quoting aforesaid provisions and the instructions given by the State authorities submitted before this Court is to demonstrate that they clearly indicate that the consistent stand taken by the State authorities including the Board before this Court upto the stage of final hearing, was that the use of whitener/blade was strictly prohibited; the candidates were not permitted to change their answer; and that there was a provision for penalty in case any of the instructions are not followed. Though there had been change of language in these instructions but the said instruction clearly indicated that throughout the word "prohibited" has been used and the last instruction dated 2.9.2014, which the respondents are now claiming that they were confidential in nature and could not have been used by the petitioners in support of their arguments, clearly indicates that the whitener and blade were taken as prohibited material; their use was prohibited; and copies of the candidates using such material were not to be evaluated.
35. Shift in the stand taken by the State has come after the two Committees have scrutinized the OMR sheets and final result has been declared and now the stand taken is that such instruction, that prohibition on use of whitener and blade was like a word of caution to the candidates that in case they use it, they do so at their own risk.
36. With a view to regulate the selection, promotion, training, appointment, determination of seniority and confirmation etc. of the Sub Inspector and Inspector of Civil Police of Uttar Pradesh Force, statutory rules known as Uttar Pradesh Sub Inspector and Inspector (Civil Police) Rules, 2008 (the Rules of 2008) were framed in exercise of powers under sub Section 2 of Section 46 read with Section 2 of the Police Act, 1861. The recruitment board was constituted and as per Section 3 (c), the 'Board' means the 'Uttar Pradesh Services Service Recruitment and Promotion Board' established in accordance with the Government Orders issued from time to time in this regard. The procedure for recruitment has been provided in Part V of the aforesaid Rules of 2008 and procedure for direct recruitment to the post of Sub Inspector has been provided under Rule 15 of the aforesaid Rules. Relevant Rule 15 (ii) and (iii) are quoted hereinunder:-
"15. (ii) A separate booklet shall be attached with the application Form containing the information regarding educational qualification, age, minimum qualifying standards for each category of Physical Standard Test, Physical Efficiency Test, Medical Fitness, minimum qualifying marks for Written Examination subject wise, copy of O.M.R. Sheet for practice and other important guidelines; (Emphasis supplied)
(iii) The application form shall be on O.M.R. Sheet.
37. Clause (b) of the aforesaid Rules provides that after getting the application form scanned through computer, call letter be issued to the eligible candidates; Clause (c) provides for physical efficiency test of qualifying nature; Clause (d) provides for preliminary written test which too is of qualifying nature; Clause (f) provides for main written examination and Clause g provides for group discussion. The Note appended to Clause (f) of Rule 15 mentions that the procedure for conducting written examination shall be such as prescribed in Appendix-3. Clause 15 (f) is quoted as under:-
(f) Main Written Examination- The candidates who declared successful in the Physical Efficiency Test under clause (e) shall be required to appear in the main written examination which shall carry 400 marks in the following subjects-
Subject
Maximum Marks
General Hindi
Hindi Essay
75 marks
25 marks
Basic Law and Constitution
100 marks (objective type)
Numerical and Mental Ability Test
100 marks (objective type)
Mental Aptitude Test /I.Q. Test/ Reasoning
100 marks (objective type)
Note- The procedure for conducting written examination shall be such as prescribed in Appendix-3.
38. Relevant clause of Appendix-3 are Clauses (d) and (e), which are also quoted as under:-
"(d) For the purpose of written examination O.M.R. Answer sheet shall be in 03 copies, the original copy will be used for scanning, first carbon copy shall be kept for Board's record and second carbon copy would be for candidates. Candidates shall be permitted to take away their carbon copy of O.M.R. Sheet with them.
(e) After written examination is over answer sheets will be sent to the Board, centre-wise in sealed covers though the safe custody provided by the District Magistrate / Senior Superintendent of Police / Superintendent of Police."
39. The instruction booklet provided that the application form prescribes the procedure for filling up of the form on OMR sheet. Clause 5 of the instruction booklet prescribes for filling up of the application form. Clause 5 (i) and (iv) are relevant for the purpose of the present case and are quoted as under:-
¼i½ vks0,e0vkj0 vkosnu i= Hkjus ls iwoZ foKfIr vkSj vuqns'k&iqfLrdk dk lko/kkuhiwoZd v/;;u dj ysaA
¼iv½ vks0,e0vkj0 vkosnu&i= esa lwpuk dks"Bd ,oa ckWDl ds ek/;e ls Hkjh tk;sxh] ftls dE;wVj }kjk i<+k tk;sxkA ckWDl ,oa dks"Bd dks [email protected] cky IokbaV isu ls gh Hkjk tk;sA izfof"V;ksa ds lkFk cus gq, ckWDl esa v{kj vFkok vad funsZ'kkuqlkj Hkjk tk;sA ,d ckWDl esa ,d gh v{kj vFkok vad fy[ksaA lko/kkuh iwoZd Hkjsa] [email protected] u gksus nsaA fdUgha dkj.kksa ls dks"Bd dh izfof"V dks dEI;wVj }kjk u i<+s tkus dh fLFkfr esa ckWDl esa Hkjh x;h izfof"V dks i<+k tk;sxkA ckWDl ,oa dks"Bd dh izfof"V;ksa esa fojks/kkHkkl ik;s tkus ij vH;FkZu fujLr dj fn;k tk;sxkA
English translation by the Court
(i) Please read the advertisement and instruction-booklet carefully before filling the O.M.R. application form.
(iv) Information in the O.M.R. Application shall be filled through brackets & boxes, which will be read by the computer. Boxes & brackets should be filled with black/blue ball-point pen only. The boxes alongside the entries should be filled up with letters or digits as instructed. Write only one letter or digit in a box. Fill up carefully, let there be no overwriting/cutting. In case of the entries made in brackets not being read by the computer for any reasons, entries made in boxes shall be read. Candidature, in case of discrepancies being found between entries made in brackets and the boxes, shall be cancelled. (emphasis supplied)
40. Clause 6 which provides a guideline as to how the answers are to be given on OMR sheet and how the questions will be permitted and how they are to be answered. Clause 6 is quoted as under:-
6- fyf[kr ijh{kkvksa esa iz'u o iz'u dk mRrj nsus dh fof/k
izkjfEHkd fyf[kr ijh{kk o eq[; fyf[kr ijh{kk ¼lkekU; [email protected] fucU/k dks NksMdj½ ds iz'u i= oLrqfu"B izdkj ds gksaxsA lkekU; [email protected] fucU/k ds iz'ui= o.kZukRed 'kSyh esa gksaxsA lHkh iz'ui= fgUnh Hkk"kk esa gksaxsA mRrj&i=d vks0,e0vkj0 i=d ij gksaxs ftlesa pkj fodYi fn;s tk;saxsaA vH;FkhZ dks muesa ls fdlh ,d fodYi dks pquuk gS]tks iz'u dk lgh mRrj ns vkSj mRrj&i=d esa lgh fodYi ds xksyksa dks d[email protected] cky IykbUV isu ls gh iw.kZr;k Hkjuk gSA
English translation by the Court
(6) Questions in the written examinations and method of answering them:
The question-papers of the preliminary written examination and the main written examination (excluding General Hindi/Hindi Essay) shall be of objective type. The question-papers of General Hindi/Hindi Essay shall be of descriptive type. All the question papers shall be in Hindi language. The answer-sheets shall be O.M.R. sheets, giving four options, out of which the candidate has to select any one option, giving the correct answer to the question, and to completely fill the appropriate circles with the correct options in the answer sheet with blue/black ball-point pen only.
(emphasis supplied)
41. It is relevant to highlight the instructions which have been mentioned on the Cover page of the question paper of the preliminary examination held in the year 2011. The Cover page clearly indicate that the candidates are required to go through the instructions carefully before attempting answers and these instructions are marked as important instructions. Relevant clauses of the said instructions on the Cover page of the preliminary written examination held in the year 2011 are quoted as under:-
2- bl iz'u iqfLrdk ds izFke Hkkx esa 80 iz'u ,oa f}rh; o r`rh; Hkkx esa 40&40 iz'u ¼dqy 160 iz'u½ gSaA izR;sd iz'u ds pkj oSSdfYid mRrj fn;s x;s gSaA buesa ls ,d mRrj dks pqu ysa ftls mRrj i=d ij vafdr djuk pkgrs gSaA ;fn ,slk yxs fd ,d ls vf/kd mRrj lgh gS rks ml mRrj dks mRrj i=d ij vafdr djsa tks vH;FkhZ dks lcls vf/kd lgh yxsA izR;sd iz'u ds fy;s dsoy ,d gh mRrj pqusa rFkk vks0,e0vkj0 mRrj i=kd esa iz'u ds lkeus fn;s x;s lEcaf/kr xkys dks dkys vFkok uhys cky IokbUV isu ls gh lgh rjg ls HkjsaA isfUly dk iz;ksx oftZr gSA xyr rjhds ls Hkjs x;s xksys ds fy, dksbZ vad ugha fn;s tk;sxsA ,d ls vf/kd mRrj nsus dh n'kk esa iz'u ds mRrj dks xyr ekuk tk;sxk ,oa mls tkapk ugha tk;sxkA OgkbVuj] CysM dk iz;ksx oftZr gSA blds iz;ksx ls vks0,e0vkj0 mRrj i=d esa Hkjh x;h lwpuk dks e'khu }kjk ugha i<+k tk ldsxkA
3- vH;FkhZ vks0,e0vkj0 mRrj i=d dks [kkyh u NksMs+A
4- iz'uksa ds mRrj dsoy mRrj i=d ij gh nsus gSaA bl iz'u iqfLrdk ds vUnj mRrj vafdr ugha djus gSaA mRrj dsoy vks0,e0vkj0 mRrj i=d esa fn;s x;s funsZ'kksa ds vuqlkj Hkjs tk;saA
9- Åij ds vuqns'kksa esa ls fdlh ,d dk Hkh ikyu u djus ij vH;FkhZ ij fu;ekuqlkj dk;Zokgh dh tk ldrh gS] ;k n.M fn;k tk ldrk gSA
English translation by the Court
2. This question-booklet contains 80 questions in the first part and 40 each in the second and third parts (totalling 160 questions). Four alternative answers have been given to each question. Choose an answer which you want to mark on the answer sheet. If more than one answer appear to be correct, mark that answer on the answer which appears to be most correct. Choose only one answer for each question and fill the relevant circle given alongside the question in the OMR answer-sheet with blue or black ball point pen only. The use of pencil is prohibited. No mark shall be awarded for the circle being wrongly filled up. In case of giving more than one answer for a single question, the answer to that question shall be treated to be wrong and the same shall not be evaluated. Use of whitener and blade is prohibited. Information filled on the OMR answer-sheets using whitener and blade shall not be read by the machine.
3. Candidate should not leave the OMR answer-sheet blank.
4. The answers to the questions are to be given only on the answer-sheets. Answers are not to be marked inside this question-booklet. Answers shall be marked only as per the instructions given in the OMR answer-sheets.
9. In case of not adhering to even one of the aforesaid instructions, action may be taken against or penalty may be imposed on the candidate as per rules.
(emphasis supplied)
42. The instructions issued on the Cover page of the question booklet of the main written examination held in the year 2014 are also relevant and instructions clearly provide that the candidates are required to go through the instructions carefully before giving answers and these instructions are also marked as important instructions. Relevant clauses being Clause 3 and 6 are quoted as under:-
3- bu iz'u iqfLrdk esa dqy 150 iz'u gSaA izR;sd iz'u ds pkj oSdfYid mRrj fn;s x;s gSaA buesa ls vH;FkhZ ftl mRrj dks lgh le>rs gksa pqu ysaA ;fn ,slk yxs fd ,d ls vf/kd mRrj lgha gS rks ml mRrj dks mRrj i=d ij vafdr djsa tks vH;FkhZ dks lcls vf/kd lgh yxsA izR;sd iz'u ds fy, dsoy ,d gh mRrj pqusa rFkk vks-,e-vkj0 mRrj i=d esa ml iz'u ds lkeus fn;s x;s lEcfU/kr xksys dks lgh rjg ls iwjk&iwjk dkys vFkok uhys cky IokbUV isu ls HkjsaA isafly dk iz;ksx oftZr gSA xyr rjhds ls Hkjs x;s xksys ds fy, dksbZ vad ugha fn;s tk;saxsA ,d ls vf/kd xksys Hkjus ij iz'u ds mRrj dks xyr ekuk tk;sxkA OgkbVuj] CysM vkfn dk iz;ksx oftZr gSA izR;sd lgh mRrj ds fy, 2 vad iznku fd;s tk;saxs rFkk xyr mRrj ds fy,s dksbZ _.kkRed vad ugha fn;s tk;saxsA
6- ijh{kk d{k esa ykWx&Vscy] dSydqysVj] istj] eksckby Qksu ;k vU; bysDVªkWfuDl xStsV~l dk iz;ksx oftZr gSA
English translation by the Court
3. This question-booklet contains a total of 150 questions. For each question, there are four alternative answers. Out of these, candidates may choose whichever answer they take to be correct. If more than one answer appear to be correct, the candidate shall mark on the answer sheet such an answer that appears to be most correct. Choose only one answer for each question and properly and completely fill the relevant circle given alongside the question in the OMR answer-sheet with blue or black ball point pen. The use of pencil is prohibited. No mark shall be awarded for the circle being wrongly filled up. In case of giving more than one answer for a single question, the answer to that question shall be treated to be wrong. Use of whitener and blade is prohibited. For every correct answer, 2 marks shall be awarded and for any wrong answer, there shall be no negative marking.
6. Use of log-table, calculator, pager, mobile phone or other electronic gadgets is prohibited.
(emphasis supplied)
43. It is also important to note that important instructions for the candidates mentioned on the OMR sheet given for main examination. The relevant clauses being Clause 1, 2, 4, 7, 8, 9 and 11 are quoted as under:-
1- ;g mRrj i=d rhu izfr;ksa esa gS %
¼i½ ewy izfr ftls vks-,e-vkj-¼Optical Mark Recognition½ izfdz;k ls e'khu }kjk i<+k tk;sxkA
¼ii½ izFke dkZu izfr cksMZ ds vfHkys[k ds fy, iz;ksx dh tk,xhA
¼iii½ f}rh; dkcZu izfr vH;FkhZ ds vfHkys[k ds fy, gksxhA
2- vks-,e-vkj- mRrj i=kd dks e'khu }kjk i<+k tk;sxkA dksbZ eksM+] fdukjs dk QVuk ;k L;kgh ds vuko';d fu'kku e'khu ds fy, i<+us esa ck/kd gks ldr gSaA mRrj i=d ij fdlh izdkj dk LVsiy] vkyifu vkfn yxkuk ;k fdlh LFkku ls eksM+uk vFkok QkM+uk oftZr gSA
4- mRrj i=e esa lwpuk, vafdr djus rFkk xksys Hkjus gsrq dkys vFko uhps cky IokbaV isu dk gh iz;ksx fd;k tk;sxkA isfUly dk iz;ksx oftZr gSA
7- ?kks"k.kk ds fy, cus fu/kkZfjr LFkku ij fgUnh vFkok vaxszth esa jfuax gS.M jkbfVax esa viuk gLrk{kj oSls gh djsa tSls vki }kjk vius vkosnu i= esa fd;k x;k gSA vH;FkhZ ds gLrk{kj fd, x, fcuk mRrj i=dksa dk ewY;kadu ugha fd;k tk,xkA mRrj i=d ds vU; fdlh LFkku ij viuk uke ;k fdlh izdkj dk igpku fpUg vafdr u djsaA ,slk ik;s tkus ij vH;FkZu fujLr dj fn;k tk;sxkA
8- ,d ls vf/kd xksys Hkjus ij mRrj dks xyr ekuk tk;sxkA
9- fn;k gqvk mRrj cnyus dh vuqefr ugha gSaA mRrj i=d ij OgkbVju] CysM vkfn dk iz;ksx oftZr gSA
11- mRrj i=d dh ewy izfr vH;FkhZ }kjk vius lkFk ysdj pys tkus ij mldk vH;FkZu fujLr dj fn;k tk,xkA ;fn vH;FkhZ cksMZ ds fy, fu/kkZfjr izFke dkcZu izfr vius lkFk ysdj pyk tkrk gS rks vH;FkhZ dks ewy izfr esa vkbZ fdlh fHkUurk ij izfrokn dk dksbZ volj miyC/k ugha gksxkA
English translation by the Court
1. This answer-sheet is in triplicates:
(i) Original copy which shall be read by the machine through Optical Mark Recognition Process.
(ii) The first carbon copy shall be used for the record of the Board.
(iii) The second carbon copy shall be for candidate's record.
2 The O.M.R. Answer sheet shall be read by the machine. Any folding, edge tearing or unnecessary ink spots may impede its reading by the machine. Using staple, all-pin etc. on the answer sheet in any way or folding/ tearing it at any point is prohibited.
4. Only black or blue ball point pen shall be used for filling the information in answer-sheet and blackening the circles. Use of pencil is prohibited.
7. At the place specified for declaration, put your signature in running hand writing in Hindi/English in the same manner as has been done by you in the application form. The answer sheet, without signature of the candidate, shall not be evaluated. Do not enter your name or any kind of identification mark anywhere on the answer sheet. On being found so, the candidature shall be cancelled.
8. On filling more than one circles, the answer shall be treated to be wrong.
9. The answer given is not permitted to be changed. The use of whitener, blade, etc. on the answer sheet is prohibited.
11. On the original answer sheet being taken away by the candidate with himself/ herself, his/ her candidature shall be cancelled. If the candidate carries away the first carbon copy meant for the Board then, in case of any discrepancy in the original copy, no opportunity for complaint shall be available to him.
(emphasis supplied)
44. The Instructions dated 2.9.2014 given to the Centre Superintendent for conducting the main written examination, which are marked as confidential, are also very relevant for the purpose of this case and the relevant clauses being Clause 7, 7.3 and 11.14 are quoted as under:-
7- ijh{kkfFkZ;ks dks nh tkus okyh egRoiw.kZ lwpuk,a ,oa buds lEcU/k esa dh tkus okyh dk;Zokgh %&
7-3 vks0,e0vkj0 i=d ds vk;rkdkj [kkus o xksys esa dh tkus okyh leLr izfof"V;Wk dsoy dkys ;k uhys cky IokbaV isu ls Hkjh tk;sxhA Qkm.Vsu isu] tsy isu] Ldsp isu] ,p0oh0 isfUly dk vks0,e0vkj0 mRrj i=d Hkjus gsrq mi;skx esa ykuk iw.kZ:i ls oftZr gksxkA blds vfrfjDr ijh{kk d{k esa OgakbVuj] CysM vkfn dk ykuk o iz;ksx djuk Hkh iw.kZ:i ls oftZr gSA bu funsZ'kks dk mYya?ku djus okys ijh{kkfFkZ;ksa dh mRrj iqfLrdkvksa dk ewY;kadu ugha gksxkA
11-14 ijh{kk ds nkSjku fdlh ijh{kkFkhZ }kjk dkih]fdrkcsa]uksVl vFkok fdlh izdkj dh fuf"k) lkexzh dk iz;ksx djus ij vFkok mlds ikl ls cjken gksus ij vFkok vUrjh{kd ls nqO;Zogkj djus] mRrj [email protected]'u iqfLrdk ysdj Hkkx tkus] bls u"V djus ;k QkM nsus] ijh{kk dsUnz dh lEifRr dks {kfr igqWpkus ;k vU; dksbZ vkijkf/kd d`R; djus ij Ik;Zos{kd }kjk mlds fo:) lEcfU/kr Fkkus esa izFke lwpuk fjiksVZ ntZ djk;h tk;sxhA ijh{kk esa vuqfpr lk/kuksa dk iz;ksx djuk] udy djuk ;k udy djkuk mRrj i=d ysdj Hkkx tkuk ;k mls fou"V djuk vkfn d`R; vijk/k dh Js.kh esa vkrs gS] tks Hkkjrh; n.M lafgrk 1860 dh /kkjk 420] 379 rFkk 426 ds vUrxZr n.Muh; gSA ,sls izdj.kksa esa tqekZuk vkSsj ltk nksuksa gh gks ldrh gSA vuqfpr lk/kuksa dk iz;ksx djrs gq, idMs tkus ij izk:i&12 ds izk:i esa ijh{kkFkhZ ls mlds fooj.k vafdr djkdj gLrk{kj djk;s tk;saxs ,oa vUrjh{kd rFkk Ik;Zos{kd okafNr izfof"V;Wk djds ml ij viuk izfrgLrk{kj djsxsaA ijh{kkFkhZ ds ikl ls izkIr dh x;h vuqfpr lkexzh lhYM fyQkQs esa ijh{kk fu;U=d dks uke ls lEcksf/kr djrs gq, Ik;Zos{kd }kjk Hksth tk;sxh] ftl ij cksMZ Lrj ls mi;qDr fu.kZ; fy;k tk;sxkA
English translation by the Court
7. The important information to be given to the examinees and actions to be taken in this regard:-
7.3 All the entries in the rectangular boxes and circles in the O.M.R. Sheet shall be made with black or blue ball point pen only . The use of fountain pen, gel pen, sketch pen, HB pencil in filling up the O.M.R. answer-sheet is fully prohibited . In addition to this, carrying and using whitener and blade etc. in the examination hall is absolutely prohibited. The answer-sheets of the examinees violating these instructions shall not be evaluated.
11.14 On any examinee found to be in the possession of copy, books, notes or any type of prohibited material during the exam or using the same or misbehaving with the invigilator or carrying away the answer sheet/question paper or destroying it or tearing it off or vandalizing the property of the exam centre or indulging in any criminal acts then the invigilator shall lodge F.I.R. against such candidate in the concerned police station. Using unfair means, copying or facilitating copying, taking away the answer sheet or destroying the same fall under the definition of offences punishable under sections 420, 379 and 426 of the I.P.C., 1860. Such matters may invite penalty as well as imprisonment. On being caught using unfair means the examinee shall be caused to enter his particulars in Form-12 and to put his signature thereon and the invigilator as well as the observer shall counter-sign the same after filling up the necessary entries. The unfair means recovered from the possession of the candidate shall be sealed in an envelope and sent to the exam controller by the observer, upon which appropriate decision shall be taken by the Board.
(emphasis supplied)
45. Learned counsel for the petitioner argued that instructions given in the instruction booklet supplied with the application form is only about filling up of the application form and is not relevant for the purpose of examination. The submission is that the examination is taken in several stages as per Rule 15 of the Rules of 2008. After filling up of the application form the recruitment process is to undergo five stages. First stage is physical standard test, which is of qualifying nature as per Clause C of Rule 15; the second stage is preliminary written test, which is also of qualifying nature; third stage is physical efficiency test, which is also of qualifying nature; fourth stage is main written examination; and the fifth stage is group discussion and medical test. The submission of learned counsel for the petitioner is that at all the five stages, specific instructions are issued separately to the candidates and they were given on the admit card, question paper as well as on the OMR sheet and all instructions are marked as important instructions, which have to be followed by the candidates.
46. It was further submitted that all these instructions are in the nature of administrative instructions to fill the gap in the statutory instructions which have been provided earlier to the candidates for the purpose of filling up of the application form and are as such binding on the candidates. It was submitted that the statutory instructions nowhere provides for use of whitener or blade or permitting the same. Such instructions are given at every stage by the Board which are binding not only on the candidates but under all circumstances on the Board and they have to evaluate the OMR answer sheets strictly following such instructions.
47. Attention was drawn on Clause 2 of the instructions provided at the time of preliminary examination, which clearly provides that only one answer is to be selected; the OMR sheet is to be filled up by blackening the circle by using only black or blue ball point pen; use of pencil is prohibited; no marks will be given for the improperly filled circle; if more than one answers is given, the answer will be treated as wrong and will not be evaluated; use of whitener or blade is prohibited for the reasons that the scanning machine will not be in a position to read the information filled up in the OMR sheet. Clause 3 provides that the candidates are not permitted to leave the OMR sheet blank. Clause 4 provides that answer on the OMR sheet is to be filled up only as per instructions and Clause 9 provides that if any of the above directions/instructions is not followed, suitable action can be taken as per Rules or he can be penalized. He submits that this clearly indicates that these important instructions are to be strictly followed and a penalty clause was also provided for not following such instructions. He further submits that even in the main examination similar instructions were given, however, the explanation given in Clause 2 that the scanning machine will not be able to read in case whitener or blade is used, is missing.
48. Learned counsel for the petitioner thus submitted that the instructions given on the OMR sheet were loud and bold to the extent that the Clause 9 clearly provides that given answer cannot be changed and the use of whitener or blade is prohibited. It has been submitted that both these conditions that change of answer is not permissible and the use of whitener or blade is provided in one clause itself, which clearly indicates that the instructions are mandatory in nature and are to be strictly followed. It is submitted that all the candidates admitted that the use of whitener or blade was prohibited and that they have used the same. The submission is that under such circumstances the petitioners stand discriminated and the action of the Board including such candidates in the final result of the written examination, is wholly arbitrary.
49. Attention was also drawn to the guidelines dated 2.9.2014 issued by the Board to the Centre Superintendent for the purpose of conducting main examination scheduled to be held on 14.9.2014. On the strength of Clause 7.3 it was submitted that all the candidates were informed that even carrying whitener or blade inside the examination hall was prohibited (using thereof was undisputedly prohibited right from the initial stage of the selection process) and it was clearly provided that OMR sheets will not be evaluated.
50. The submission is that the respondent authorities are bound by their own instructions and it is not open to them to claim that they can include such OMR sheets for evaluation. It was further submitted that not only in view of the instructions filed before this Court, but also from the the narrative which is on record, apart from the information supplied under the RTI Act and the instructions given to the candidates, it is very much clear that the Board cannot be permitted to take a somersault by including such candidates in the merit list of the main examination and in the final result. It was submitted that Clause 11.14 provides that in case any prohibited material is found in possession of the candidates, action will be taken against him. As instruction 7.3 provides that even carrying whitener or blade inside the examination hall was prohibited, therefore, it falls within the category of prohibited material and as such the Board is under obligation to exclude OMR sheets from evaluation and since now they have already been evaluated, the candidates who have used whitener or blade, are liable to be excluded from the result of main examination and consequently from the final result declared on 16.3.2015. It was pointed out that narrative/instructions of the State in the present writ petition, which is on record alongwith supplementary affidavit filed in Writ Petition No. 14836 of 2015, clearly indicates that the respondent authorities have also considered whitener and blade as prohibited material. Reliance was placed on a decision of the Hon'ble Apex Court in the case of Secretary Tamilnadu Public Service Commission Vs. A.B. Natarajan, 2014 (14) SCC 95. Paragraphs 16 and 18 of the aforesaid judgment are quoted as under:-
"16. In the instant case it is an admitted fact that there were serious violations of the instructions given to the candidates while answering the questions. Although all these details were placed before the learned Single Judge, the learned Single Judge did not give importance to these irregularities and dismissed the petitions, but when the appeals were filed, in our opinion, the Division Bench of this Court rightly understood the importance of such irregularities and allowed the appeals by setting aside the selection of the candidates who had committed such irregularities while writing their answer books. We are of the view that if such a strict view is not taken by a constitutional body which has been entrusted with the work of selecting best candidates, the entire purpose behind having the Commission or any other such body for examining merit of candidates would be frustrated. We are, therefore, of the view that the appellate court was absolutely justified in allowing the appeals and by holding that all those candidates who had committed material irregularities could not be declared selected.
18. The candidates who had applied for class I post, if selected, were to be Class I officers of the State of Tamil Nadu. Not following the instructions given to them while appearing in the examination, which had been conducted for their selection, would either mean that they were so careless that they did not read or bother about the instructions to be followed or they wanted to give some indication to the examiner about their identity. In either case, such a candidate cannot be selected. A candidate, who is so careless that he does not bother about his own interest, cannot be expected to become a good officer. Interest of the candidate is to get through the examination and for that purpose he has to follow the instructions. By not following the instructions, he does not take case of his own interest. So, if he was written the answer books carelessly without bothering about the instructions given to him, he is a careless person who must not be appointed as an officer and if he has done it deliberately, then also he should not be appointed as an officer because one who plans such illegalities even before joining his service, cannot be expected to become a fair and straightforward officer. So, in either case, such a candidate cannot be selected for appointment as an officer and that too a Class I officer of any State."
(emphasis supplied)
51. It was submitted that administrative instructions given to the candidates for the purpose of answering questions in a competitive examination have to be followed strictly. It was further submitted that this prohibition is to avoid manipulation at a later stage also. Reliance was placed on a decision of the Hon'ble Apex Court in the case of Lachmi Narain Vs. Union of India, 1976 (2) SCC 953. Paragraphs 68 and 72 are quoted as under:
"68. Section 6(2), as it stood immediately before the impugned notification, requires the State Government to give by notification in the Official Gazette "not less than 3 months' notice" of its intention to add to or omit from or otherwise amend the Second Schedule. The primary key to the problem whether a statutory provision is mandatory or directory, is the intention of the law-maker as expressed in the law, itself. The reason behind the provision may be a further aid to the ascertainment of that intention. If the legislative intent is expressed clearly and strongly in imperative words, such as the use of "must" instead of "shall", that will itself be sufficient to hold the provision to be mandatory, and it will not be necessary to pursue the enquiry further. If the provision is couched in prohibitive or negative language, it can rarely be directory, the use of peremptory language in a negative form is per se indicative of the intent that the provision is to be mandatory. (Crawford, The Construction of Statutes, pp. 523-24). Here the language of sub-section (2) of Section 6 is emphatically prohibitive, it commands the Government in unambiguous negative terms that the period of the requisite notice must not be less than three months." (Emphasis supplied)
"72. For these reasons we are of opinion that the learned Single Judge of the High Court was right in holding that the impugned notification was outside the authority of the Central Government as a delegate under Section 2 of the Laws Act." (emphasis supplied)
52. It is further submitted that since the Rules of 2008 are silent as to how the examinations are to be actually conducted, it is always open to the Government or to the Board to issue necessary directions to fill up the details and they have to be followed. It is further submitted that administrative instructions, so issued for the purpose where Rules are silent, can fill up the gap and supplement the Rules, in case they are not inconsistence with the Rules already framed, and such instructions can be issued only to supplement the statutory rules and not to supplant it and such instructions should be subservient to the statutory provisions, therefore, in the present case when it was not provided in the statutory rules of 2008 as to how examinations will be conducted, the administrative instructions to fill up this gap was not contrary to the Rules as it was nowhere provided in the statutory rules that use of whitener/blade is permitted. Reliance was placed on a decision of the Hon'ble Apex Court in the case of Dhananjay Malik Vs. State of Uttaranchal, 2008 (4) SCC 171. Paragraph 12, 14 and 15 of the same are quoted as under:
"12. The next question that arises for consideration is as to whether the Government can, by way of administrative instructions, fill up the gaps and supplement the Rules and issue instructions not inconsistent with the Rules already framed, if Rules are silent on any particular point?"
"14. A Constitution Bench of this Court in Sant Ram Sharma v. State of Rajasthan6, has pointed out at AIR p. 1914 that the Government cannot amend or supersede statutory rules by administrative instructions, but if the rules are silent on any particular point, the Government can fill up the gaps and supplement the rules and issue instructions not inconsistent with the rules already framed." (Emphasis supplied)
"15. The aforesaid ruling has been reiterated in para 9 of the judgment by a three-Judge Bench of this Court in Union of India v. K.P. Joseph7 as under: (SCC p. 196)."
(emphasis supplied)
53. Reliance was placed on the judgment of the Hon'ble Apex Court in the case of State of U.P. and others Vs. Chandra Mohan Nigam and others, 1977 (4) SCC 345, paragraph 26 of which is quoted as under:
"26. The learned Single Judge held the instructions of the Ministry of Home Affairs as statutory and as such binding, on a concession made in the counter-affidavit submitted before him by the Under Secretary of the Personnel Department (Cabinet Secretariat). According to the counter-affidavit these instructions were made by the Government by Rule 2 of the All-India Services (Conditions of Service -- Residuary Matters) Rules, 1960. It is not necessary to go into this aspect in detail in this case as to whether the instructions can be elevated to the status of statutory rules or even constitutional directions as found by the learned Single Judge. It is sufficient for our purpose that these instructions do not violate any provision of the Act or of the rules. Rule 16(3), being a rigorous rule vis-a-vis a government servant not himself willing to retire under Rule 16(2), has to be invoked in a fair and reasonable manner. Since Rule 16(3) itself does not contain any guidelines, directions or criteria, the instructions issued by the Government furnish an essential and salutary procedure for the purpose of securing uniformity in application of the rule. These instructions really fill up the yawning gaps in the provisions, and are embedded in the conditions of service. These are binding on the Government and cannot be violated to the prejudice of the Government servant (see also Sant Ram Sharma v. State of Rajasthan2 and Union of India v. K.P. Joseph3)."
(emphasis supplied)
54. Reliance was placed on the decision of the Hon'ble Apex Court in the case of Arunachal Pradesh Public Service Commission and another Vs. Tage Habung and others, 2013 (7) SCC 737, paragraph 32 of which is quoted as under:
"32. As noticed above, cut-off marks of 33% fixed as qualifying marks in all subjects for the purpose of interview cannot by any stretch imagination be held illegal or unjustified merely because such criteria for securing minimum 33% marks was notified for the Preliminary Examination and Main Examination. Rule 11 of Arunachal Pradesh Public Service Combined Civil Service Examination Rules, 2001 empowers the Commission to fix minimum qualifying marks for the purpose of shortlisting the candidates for interview. In our considered opinion, the power exercised by the Commission under Rule 11 of the 2001 Rules fixing the qualifying marks in the written examination in the process of conducting the recruitment test cannot be interfered with by this Court. We reinstate that there must be some yardstick to be followed by the Commission for the purpose of shortlisting the candidates after the written examination. The fixation of qualifying marks as 33% in the written examination cannot be held to be illegal or arbitrary action of the Commission merely because it was notified in the process of conducting recruitment tests. It was argued from the side of the appellant Commission that the Commission has in the past conducted written examination fixing the cut-off marks in exercise of power under Rule 11 of the 2001 Rules. The High Court has lost sight of the fact that pursuant to the directions of the learned Single Judge in his order dated 30-9-2008, the result was declared applying the qualifying marks as notified in the O.M. Dated 7-1-2008 and the same was adopted by the Commission."
55. It is submitted that the administrative/executive instructions for filling up vacuum about the procedure to be adopted will hold the field and such instructions can always be issued. Reliance was also placed on a Full Bench decision of this Court in Writ A No. 55874 of 2009 (Harpal Singh Vs. State of U.P. And others) decided on 30.1.2015 reported in 2015 (3) ADJ 236 (FB).
56. On the strength of the aforesaid judgments, it was contended that the instructions dated 2.9.2014 are not violative of the statutory Rules of 2008. They are administrative instructions to fill in the gap and are binding on all the respondents including the Board.
57. It is next submitted that purely administrative action can also be tested on the touch stone of Article 14 as the candidates, who have violated the instructions and the candidates who have religiously followed the instructions form two categories, and by the action of the Board by inclusion of the first category in the final result, the Board has discriminated the second category candidates and this action is wholly arbitrary, discriminatory and is hit by Article 14 of the Constitution of India.
58. The further submission is that such instructions were given at every stage of examination (as already taken care of earlier) and even in the absence of the instruction dated 2.9.2014 the instructions about prohibition of use of whitener/blade were categorical in nature and have to be followed as the word "prohibited" was specifically used and under no circumstances their importance can be ignored. It is further submitted that in view of the earlier administrative instructions, such instructions given on 2.9.2014 were in no manner in violation of the statutory Rules of 2008. It is submitted that prohibition on use of whitener/blade was clearly mentioned in the earlier instructions on admit card, question paper and OMR sheets of preliminary as well as main examination and therefore, the instructions dated 2.9.2014 are binding on the Board and as well as on the selected candidates. On the strength of the decision of the Hon'ble Apex Court in the case of Bedanga Talukdar Vs. Saifudaullah Khan and others, 2011 (12) SCC 85 (paragraphs 29, 30 and 31), wherein it was held by the Hon'ble Apex Court that the submission of disability certificate alongwith application or before appearing in the preliminary examination is mandatory, the submission is that the same analogy applies in the present case also where administrative instructions were issued by using the word "prohibited" clearly indicating that such prohibition was mandatory in nature. Paragraph 29, 30 and relevant extract of paragraph 31 of the said ruling are quoted as under:
"29. We have considered the entire matter in detail. In our opinion, it is too well settled to need any further reiteration that all appointments to public office have to be made in conformity with Article 14 of the Constitution of India. In other words, there must be no arbitrariness resulting from any undue favour being shown to any candidate. Therefore, the selection process has to be conducted strictly in accordance with the stipulated selection procedure. Consequently, when a particular schedule is mentioned in an advertisement, the same has to be scrupulously maintained. There cannot be any relaxation in the terms and conditions of the advertisement unless such a power is specifically reserved. Such a power could be reserved in the relevant statutory rules. Even if power of relaxation is provided in the rules, it must still be mentioned in the advertisement. In the absence of such power in the rules, it could still be provided in the advertisement. However, the power of relaxation, if exercised, has to be given due publicity. This would be necessary to ensure that those candidates who become eligible due to the relaxation, are afforded an equal opportunity to apply and compete. Relaxation of any condition in advertisement without due publication would be contrary to the mandate of equality contained in Articles 14 and 16 of the Constitution of India."
"30. A perusal of the advertisement in this case will clearly show that there was no power of relaxation. In our opinion, the High Court committed an error in directing that the condition with regard to the submission of the disability certificate either along with the application form or before appearing in the preliminary examination could be relaxed in the case of Respondent 1. Such a course would not be permissible as it would violate the mandate of Articles 14 and 16 of the Constitution of India."
"31. In our opinion, the High Court was in error in concluding that Respondent 3 had not treated the condition with regard to the submission of the certificate along with the application or before appearing in the preliminary examination, as mandatory. The aforesaid finding, in our opinion, is contrary to the record."
(emphasis supplied)
59. On the strength of the decision of the Hon'ble Apex Court in the case of Karnataka Public Service Commission and others Vs. B.M. Vijaya Shankar and others, 1992 (2) SCC 206, it is submitted that the nature of administrative instructions given at the time of examination is binding and mandatory in nature and once it was violated, the issue of bonafide and honest mistake did not arise. It is submitted that all the instructions were issued to all the candidates appearing in the main examination and they were under obligation to follow but under any circumstances the Board cannot go back on such instructions issued by itself and claim that they are not mandatory in nature or they are only by way of caution and deviation therefrom is not to challenge. The Board cannot deviate from these instructions at all, in any situation, and in case if at all there is any deviation, it should not result in arbitrariness or discrimination. Paragraphs 3 and 5 of the said judgment are quoted as under:
"3. Such instructions are issued to ensure fairness in the examination. In the fast deteriorating standards of honesty and morality in the society the insistence by the Commission that no attempt should be made of identification of the candidate by writing his roll number anywhere is in the larger public interest. It is well known that the first page of the answer book on which roll number is written is removed and a fictitious code number is provided to rule out any effort of any approach to the examiner. Not that a candidate who has written his roll number would have approached the examiner. He may have committed a bona fide mistake. But that is not material. What was attempted to be achieved by the instruction was to minimise any possibility or chance of any abuse. Larger public interest demands insistence of observance of instruction rather than its breach."
"5. Competitive examinations are required to be conducted by the Commission for public service in strict secrecy to get the best brain. Public interest requires no compromise on it. Any violation of it should be visited strictly. Absence of any expectation of hearing in matters which do not affect any interest and call for immediate action, such as the present one, where it would have delayed declaration of list of other candidates which would have been more unfair and unjust are rare but well recognised exceptions to the rule of natural justice. It cannot be equated with where a student is found copying in the examination or an inference arises against him for copying due to similarity in answers of number of other candidates or he is charged with misconduct or misbehaviour. Direction not to write roll number was clear and explicit. It was printed on the first page of every answer book. Once it was violated the issue of bona fide and honest mistake did not arise. Its consequences, even if not provided did not make any difference in law. The action could not be characterised as arbitrary. It was not denial of equal opportunity. The reverse may be true. The Tribunal appears to have been swayed by principles applied by this Court where an examinee is found copying or using unfair means in the examination. But in doing so the Tribunal ignored a vital distinction that there may be cases where the right of hearing may be excluded by the very nature of the power or absence of any expectation that the hearing shall be afforded. Rule of hearing has been construed strictly in academic disciplines. It should be construed more strictly in such cases where an examinee is competing for Civil Service post. The very nature of the competition requires that it should be fair, aboveboard and must infuse confidence. If this is ignored then, as stated earlier, it is not only against public interest but it also erodes the social sense of equality. The Tribunal in issuing directions approached the matter technically and has attempted to make out much where it would have been better part of discretion to refuse to interfere. The Tribunal completely misdirected itself in this regard. In our opinion its order cannot be maintained." (Emphasis supplied)
60. Per contra, it was argued by the learned Advocate General that the Board is a statutory body and is governed by Rules of 2008. There are various stages of the examination such as, advertisement dated 19.5.2011 was issued; alongwith application form a booklet was also issued with each form and the candidates were made aware about the terms and conditions for appearing in the examination in question; Clause 6 of the booklet provides for procedure of giving answer on O.M.R. sheet and there is no whisper about the use of whitener or blade etc. or its consequences; Clause 6 further provides that only one answer is to be given, and if second answer is given, the whole answer will be treated as wrong answer; at the stage of preliminary examination three documents namely admit card, question booklet and O.M.R. sheet were given to the candidates on which instructions were mentioned for the benefit of candidates; Clause 2 in the question paper clearly mentions that the use of whitener or blade is prohibited as the scanning machine cannot read the answer; in the main examination also instructions were given on the question paper that the use of whitener or blade is prohibited and only one answer is permitted; Clause 7 of the question paper in the main examination provides that in case the O.M.R. sheet is taken away, candidature will be cancelled and according to the instructions noted on the backside of the O.M.R. sheet also, the use of whitener or blade is prohibited; the instructions dated 2.9.2014 have no relationship with the instructions of the year 2011 as given in the booklet alongwith application form as provided in the statutory Rules of 2008; these are only instructions and guidelines which were issued to the Centre Superintendent, for the purpose of conducting actual examination in the hall and they do not create or confer any right to the petitioners nor do they confer any power to change the fixed rules of the Board, which were set in motion in the year 2011, when the preliminary examination was undertaken; these confidential note has no nexus with the Rules of 2008; the prohibition of use of whitener or blade does not provide for any penalty or does not attract cancellation of candidature; cancellation of candidature or non evaluation of the answer sheet are serious in nature and unless specifically provided for are not attracted even if the use of whitener or blade is prohibited as no penalty was provided for this purpose as provided in other circumstances like use of unfair means; running with the original O.M.R. sheet etc; till the instructions dated 2.9.2014, it was nowhere mentioned that the use of whitener or blade will result in non evaluation of O.M.R. and no penal action was provided for this purpose; since the O.M.R. sheet are scanned by machine provided by the services provider, the prohibition for use of whitener or blade was for the reason that the same would affect the work of scanning machine and machine can read some of the answers as multiple answer for which no marks are awarded to the candidates and thus, the prohibition on use of whitener is closely connected with efficiency, readability and smooth functioning of machine; the use of O.M.R. sheet for the purpose of examination and its scanning by the machines is globally accepted method to achieve fairness and transparency and to avoid manual intervention and for this reason this method is also used by Union Public Service Commission, New Delhi as well as U.P. Public Service Commission, Allahabad and on inquiry from these organizations it has been confirmed that the use of whitener or blade is prohibited as the machine cannot be read the same and it is always at the risk of candidates, who uses the same; the method of scanning of O.M.R. sheet through machine is faster and there is zero human intervention except the packing and unpacking; and in case the evaluation of marks on O.M.R. sheet is to be done by manually, it will become impossible task and will lead the human intervention further leading to endless litigation etc.
61. At the cost of repetition, it was further submitted that the use of whitener or blade, per-se, is not use of unfair means and it is the individual's discretion. It was strongly contended that the instructions dated 2.9.2014 are the instructions issued to the invigilator for conducting examination in the hall where it was first time provided that the whitener or blade would result non evaluation of O.M.R. sheet and thus the submission was that such instructions are beyond the Rules of 2008 and booklet provided with the application form are the only instructions issued for this purpose. Much emphasis was given on the scanning process of the O.M.R. sheet by machines that the scanning through machine is the best available and globally accepted method. The reason for prohibition on use of whitener or blade etc. was also highlighted to point out that the use of blade literally tears of the layer of O.M.R. sheet and machine may commit error in reading the same, which may ultimately lead to rejection of the answer by showing it as multiple answer. The prohibition on use of whitener is for the reason that it hamper the reading process and if it is used it may get rubbed or chipped. The machine may not award marks for the given answer and again lead to rejection of the answer of that particular question. It has also been pointed out that in case whitener is not dried properly before submitting the O.M.R. sheet, it can stick to adjacent the sheet and can damage also, which can be problematic in the reading process of the response on the O.M.R. sheets.
62. Technical details of process of evaluation of O.M.R. sheets were also highlighted, which in the opinion of this Court are not relevant to be mentioned as such process is subsequent to the use of the whitener or blade etc., whereas, under challenge is the discrimination between the two categories, i.e., one, those who admittedly used whitener or blade (selected candidates) and two, those who did not use whitener or blade (the petitioners). Thus, the question before this Court is not the method of scanning process but the question relates to the use of whitener or blade etc. while answering the questions on O.M.R. sheets, which is a stage prior to evaluation of O.M.R. sheets by scanning machine. The details highlighted in the counter affidavit filed by the State will be taken into consideration while analysing the arguments of the respective parties and drawing conclusions.
63. It was further submitted by the learned Advocate General that most of the candidates, who have used whitener or blade have not been selected, which shows that there is no co-relation with the success of candidates. The main examination consist of 150 questions, each of two marks, and there was no negative marking for the same. The submission is that maximum candidates have used whitener or blade in one or two questions which makes difference of two to four marks out of 300 which is clearly less than 1% of the total marks.
64. Learned Advocate General sought to highlight that total 5,01,317 candidates applied for this recruitment against vacancy of 4010 posts and thus out of 125 candidates only one candidates has to be selected, which has not at all materially affected the final result declared on 16.3.2015. It was further submitted that composition of recruitment Board is a high power expert body, which after thorough examination, had taken a decision and declared the result and unless view of expert body is found to be mala fide or biased, it should not be interfered through judicial review. It was also pointed out that out of 14,256 candidates who have finally appeared in the main written examination only 3,801 candidates were declared successful.
65. Learned Advocate General had relied upon the judgment of Hon'ble the Apex Court rendered in the case of Sanchit Bansal and another Vs. Joint Admission Board and others, 2012 (1) SCC 157 (paragraphs 17, 18, 23, 27 and 28) to assert that in such matters scope of judicial review is very limited as the process of evaluation, ranking and selection of candidates to suit specialise courses is within exclusive domain of profession expert incharge. The court's interference is permissible only if there is a violation of any statutory rules and regulations or mala fide; or ulterior motives to assist or enable private gain to someone or cause prejudice to anyone; or where the procedure adopted is arbitrary and capricious. In this case also O.M.R. sheets were used for joint entrance of examination of I.I.Ts. was under challenge. Relevant paragraphs 27 and 28 are quoted as under:-
"27. Thus, the process of evaluation, the process of ranking and selection of candidates for admission with reference to their performance, the process of achieving the objective of selecting candidates who will be better equipped to suit the specialised courses, are all technical matters in academic field and the courts will not interfere in such process. The courts will interfere only if they find all or any of the following: (i) violation of any enactment, statutory rules and regulations; (ii) mala fides or ulterior motives to assist or enable private gain to someone or cause prejudice to anyone; or where the procedure adopted is arbitrary and capricious.
28. An action is said to be arbitrary an capricious, where a person, in particular, a person in authority does any action based on individual discretion by ignoring prescribed rules, procedure or law and the action or decision is founded on prejudice or preference rather than reason or fact. To be termed as arbitrary and capricious, the action must be illogical and whimsical, something without any reasonable explanation. When an action or procedure seeks to achieve a specific objective in furtherance of education in a bona fide manner, by adopting a process which is uniform and non-discriminatory, it cannot be described as arbitrary or capricious or mala fide." (emphasis supplied)
66. It was, therefore, submitted that the use of the expert body are not subject to judicial review and that in case there is no purpose of design, they are not to be disturbed. Reliance was also placed on a judgment of Hon'ble Apex Court rendered in the case of All India Council for Technical Eduction Vs. Surinder Kumar Dhawan and others, 2009 (11) SCC 726 (paragraphs 16 and 26). This was a case relating to educational matter and the Hon'ble Apex Court held that Court's interference in academic/educational matter is not appropriated except where interpretation of a statutory provision of law is involved. Only this much to be highlighted that this was a case where it was held that Court neither permit by their orders to create courses nor permit continuance of courses which were created in accordance with law or lower giving a minimum qualification prescribed for admission. Relying upon the judgments rendered by Hon'ble Apex Court in the case of Hemani Malhotra Vs. High Court of Delhi, 2008 (7) SCC 11 (paragraphs 14, 15 and 16) and Yogesh Yadav Vs. Union of India and others, 2013 (14) SCC 623 (paragraphs 13 to 16), it was asserted that changing the rules of the game after selection process is not permissible. The assertion was that, in the present case, the instructions dated 2.9.2014 which provides for penalty clause that copies of the candidates who have used whitener or blade etc. will not be evaluated, was not provided in the instructions of the year 2011 and in case, any such instruction was issued subsequently the said instruction does not confer any right to the petitioners to challenge the result or claim exclusion of such candidates who have used whitener or blade etc.
67. The argument raised by various counsels appearing for the selected candidates is also required to be noted.
68. The preliminary objection raised by all the respondents have already been dealt with in the earlier part of the judgment, hence reference to the same now is not required.
69. Most of the arguments about nature of prohibition are same as also argued by the learned Advocate General. The arguments of the counsel for the selected candidates on this ground in nutshell are that in the general directions issued for joint examination in the year 2011, no instructions on prohibition of use of whitener or blade etc. was provided for; at the time of preliminary examination although such prohibition was specified but no penalty was provided as it is clear in instructions no. 2 of the preliminary examination; the third instruction issued at the time of main written examination alongwith O.M.R. sheet although use of whitener or blade etc. was prohibited but again no penalty was provided. Hence, the submission was that such instructions providing for prohibition of use of whitener or blade etc. is only directory in nature as no penalty is provided and as such the same cannot be relied to seek exclusion of the candidates, who have used the same. For this purpose, almost of the learned counsels appearing for the selected candidates have relied upon various rulings on the principles of interpretation of statutory rules where administrative instructions were not in question where the court was searching to find out the intention of the legislature while interpreting statutory provisions of law.
70. The submission is that even the use of word 'prohibited' is a word of caution and will not disqualify the candidate. It was submitted that there was no intention to disqualify a candidate for this purpose, hence the petition is liable to be dismissed. For this purpose, learned counsel has relied upon a judgment rendered by Hon'ble Apex Court in the case of State Represented by Inspector of Police, Chennai Vs. N.S. Gnaneswaran, 2013 (3) SCC 594 (paragraphs 15 and 22) was referred to.
71. It is submitted that in the preliminary examination it was clearly provided that the use of whitener or blade etc. is prohibited as the machine will not be able to read the O.M.R. sheet and therefore it is very much clear that there were no instructions to penalize the candidates for using the same. The submission is that even otherwise the scanning method is to be seen by the examining body and no other persons including the court can go into the same and if the Board takes a view that candidature will not be cancelled, The petitioners cannot challenge the same. It is asserted that as to who will stand disqualified is provided in the instructions and nothing more can be added. It is further submitted that Clause 7.3 of the instructions dated 2.9.2014 was internal instruction only and is not binding on the candidates unless it was communicated and if it was not disclosed it will have no impact in the present case. In support of the argument that the burden is on the petitioners to establish that Clause 7.3 was communicated to the candidates, judgment of the Hon'ble Apex Court rendered in the case of Union of India Vs. M/s Asian Food Industries, AIR 2007 SC 750 (paragraph 49) was referred to. To highlight the rules of interpretation of statutory provisions judgments rendered by Hon'ble the Apex Court in the case of State of U.P. and others Vs. Babu Ram Upadhyay, AIR 1961 SC 751 (paragraph 29) was referred to, which is quoted as under:-
29. The relevant rules of interpretation may be briefly stated thus: When a statute uses the word "shall", prima facie, it is mandatory, but the Court may ascertain the real intention of the legislature by carefully attending to the whole scope of the statute. For ascertaining the real intention of the Legislature the Court may consider, inter alia, the nature and the design of the statute, and the consequences which would follow from construing it the one way or the other, the impact of other provisions whereby the necessity of complying with the provisions in question is avoided, the circumstance, namely, that the statute provides for a contingency of the non-compliance with the provisions, the fact that the non-compliance with the provisions is or is not visited by some penalty, the serious or trivial consequences that flow therefrom, and, above all, whether the object of the legislation will be defeated or furthered. (emphasis supplied)
72. The judgment rendered by Hon'ble Apex Court in the case of State of Punjab Vs. Satya Pal Dang, AIR 1969 SC 903 (paragraph 30) was also referred to, which is quoted as under:-
"30. There are several tests to determine when the provision may be treated as mandatory and when not and they have been culled from books and set down by Subba Rao, J. ( as he then was) in State of Uttar Pradesh v. Babu Ram Upadhya, 1961 (2) SCR 679 (at p. 710) = (AIR 1961 SC 751 at p. 765) and earlier by Venkatarama Iyer, J. in State of Bombay v. R.M.D. Chamarbaugwala, 1957 SCR 874 at p. 950 (sic). For our purpose it is necessary to emphasise only one distinction. In those cases where strict compliance is indicated to be a condition precedent to the validity of the act itself the neglect to the validity of the act itself the neglect to perform it is indicated is fatal. But in cases where although a public duty is imposed and the manner of performance is also indicated in imperative language, the provision is usually regarded as merely directory when general injustice or inconvenience results to others and they have no control over those exercising the duty."
73. In support of the contention, following decisions rendered by Hon'ble Apex Court in the cases of Bharathidasan University and another Vs. All India Council of Technical Eduction and others, 2001 (8) SCC 676 (paragraph 14), P.D. Agarwal and others Vs. State of U.P. and others, AIR 1987 SC 676 (paragraph 19) and B. Rugmini Amma and another Vs. B.S. Nirmala Kumari and others, 2013 (11) SCC 262 (paragraph 12) were also referred to. The judgment rendered by Rajsthan High Court in the case of Rajesh Kumar and another Vs. Institute of Engineers 1997 (4) SLR 805 (paragraphs 2 and 7) were also referred to.
74. All these rulings are related to subordinate legislature or statutory rules or interpretation thereof or where the rules were statutory which were sought to be amended by the office memorandum which is nothing but an administrative order. Suffice to say that they have no application in the present case where only the instructions issued during the various stages of examination which are to be followed by the candidates are relevant. Rules of statutory interpretation are not applicable to the executive/ administrative instructions. Thus, issue involved in the present case is distinguishable. Still, only this much cue can be taken from such rules of statutory interpretation that if a specific word, particularly a negative word, is used, which can not have two meaning, some meaning must be attached to the same and it need no interpretation.
75. Further submission is that the instructions issued by the Board in the year 2011 were the only statutory provisions covering the field and no executive/administrative instruction can override the statutory instructions and therefore any further instructions are meaningless and amounts to change the rules of the game in midway, which is not permissible in law. The instructions dated 2.9.2014 being confidential in nature cannot be read as instructions laying down the condition of recruitment. Further submission is that the use of whitener or blade etc. is not an unfair means and no penalty for the same can be provided. Lastly, it was submitted that any mistake in selection process is not to be used to cancel the entire selection process. Since, it is not a case of use of declared 'unfair means' therefore any reference of the judgment or any other material covering the field of use of unfair means is not necessary. In support of the submission that selection process should not be cancelled and its entirety following judgment were referred to, which are noted as under:-
1. All India SC & ST Employees' Association and another Vs. A. Arthur Jeen and others, (2001) 6 SCC 380 (para 20).
2. Union of India and others Vs. Rajesh P.U. Puthuvalnikathu and another, (2003) 7 SCC 285 )(para 6 and 7).
3. Ashok Lenka Vs. Rishi Dikshit and others, AIR 2006 SC 2382 (para 38 and 41)
4. East Coast Railway and another Vs. Mahadev Appa Rao and others, (2010) 7 SCC 678.
76. Question that arises for the purpose of deciding the present controversy are:- (1) Whether the nature of instructions prohibiting use of whitener or blade is mandatory? In other words, whether such instructions is to be followed strictly and violation thereof results in non-evaluation of OMR sheets of such candidates or the nature of such instructions does not attract any penalty and it is only by way of precaution that the candidates may use whitener or blade at their own risk? (2) Whether the petitioners, who have not used the whitener or blade stands discriminated as they have followed the instructions and the candidates, who have used whitener or blade violating the clear cut instructions and both were treated as equal at the time of evaluation of O.M.R. sheet by scanning process? (3) Whether the Board was under obligation or not to follow its own instructions for the purpose of evaluating the OMR sheets, even if the candidates have used whitener or blade while answering the questions on OMR sheets, and thus, the action of the Board is arbitrary and unreasonable and hit by Article 14 of the Constitution of India?
77. Much emphasis is being given to the evaluation process of O.M.R. sheets by scanning machine, therefore, the relevance of evaluation by O.M.R. sheets in the present case is to be seen. No doubt, the procedure of taking examination on O.M.R. sheets and its evaluation by scanning machine is internationally accepted and may be at present the best method available for this purpose.
78. Be that as it may, the fact that the evaluation of O.M.R. sheets by the scanning machine starts only after the O.M.R. sheets have already been filled up by the candidates either using or without using whitener or blade etc. cannot be ignored. Thus, the real question is following or not following the instructions given to the candidates for the purpose of filling up O.M.R. sheets. The candidates cannot be oblivious of the fact that the examination taken is for the purpose of appointment of candidates in a disciplined force where requirement of discipline and decree of following instructions is higher than under normal circumstances, which may otherwise be categorized as some kind of clerical mistake or otherwise.
79. While dealing with the controversy in hand the importance of instructions given at the time of examination has to be examined particularly in view of the developments that have taken place over a period of time in the method of taking examination.
80. I am conscious that the facts of personal knowledge is not to influence the decision of this Court but however the development in the method of taking examination is of common knowledge, which in my opinion can be taken into consideration while forming opinion particularly, when it has a direct relationship with the number of candidates appearing in the examination.
81. Initially, when the number of candidates appearing in the examination was small, written examination usually having no word limits was the method. With the increasing number of candidates the limitation of words while answering the question was placed. With further increase in number of candidates, to filter out non serious candidates examination were divided in two parts namely, preliminary examination and the main written examination. In the preliminary examination method of short answers like giving answers in one word or by writing option a, b, c, d etc. was provided and instructions were issued in this regard as to how to attempt such questions and give answers. Subsequently, the method of tick mark of a correct question was provided for and thereafter in some competitive examination like bank etc. method of answers on O.M.R. sheets was provided for. While making such observations, during the course of arguments almost all the counsels agreed that initially there was no restriction on the use of whitener or blade or even H.P. Pencil, while filling up the O.M.R. sheets. This information is based on the discussion during the course of arguments and is subject to verification. Initially, scanning machine was calibrated to read correct answers only and ignore other options whether marked or not. Thus, if any candidate has marked all the four options of all the questions on O.M.R. sheet, the scanning machine would give 100% to the candidate. Therefore, instructions of not giving more than one answer came in and scanning machine was calibrated to check all four options. Subsequently, in view of the manipulation which started creeping in because of use of such materials like whitener or blade or even pencil, the change in instructions that such material are prohibited, came into existence and accordingly the scanning machines were calibrated to examine such manipulations or to reject answers which have been given by using such materials. At the initial stage when O.M.R. sheets were used perhaps no one would have thought that leaving any O.M.R. sheets blank may lead to disqualification. Now, since the allegations of manipulations by filling up such blank sheets subsequently started coming in, leaving the O.M.R. sheets blank was prohibited. In similar manner making of any kind of mark or use of different colours of pen etc. was prohibited. Therefore, one cannot ignore the importance of instructions given to the candidates for the purpose of attempting questions and, therefore, they have to be followed religiously.
82. Now filling up of O.M.R. sheets creates two categories one, those who have "violated the instructions" and second, those who have "followed the instructions". Effect of creation of such two categories on result will be dealt with subsequently, however, first it is to be seen as to whether creation of these two classes treats unequals as equals and consequently is hit by Article 14 or not? It is needless to point out that any arbitrary and unreasonable action of State or an authority under Article 12 of the Constitution of India would be violative of Article 14. It is also the settled law that what Article 14 strikes at is arbitrariness because an action that is arbitrary must necessarily involved negation of the equality as held by Hon'ble Apex Court in the case of Ajay Hasia and others Vs. Khalid Mujib Sehravardi, 1981 (1) SCC 722. The Hon'ble Apex Court in paragraph 16 observed that "in fact, the concept of reasonableness and non-arbitrariness pervades the entire constitutional scheme and is a golden thread which runs through the whole of the fabric of the Constitution".
83. Now, for the purpose of evaluation of O.M.R. sheets these inequalities are pre-existing inequalities as these two classes of candidates i.e., "those who violated the instructions", and "those who followed the instructions" have come into existence before the O.M.R. sheets are put to evaluation by scanning machine. As held by Hon'ble Apex Court in the case Roop Chand Adlakha and others Vs. D.D.A. and others, 1989 Supp. (1) SCC 116 if it ignores pre-existing inequality it will result in inequality and will thus be hit by Article 14 of the Constitution of India. It was observed in paragraph 19 of the said judgment that "process would be constitutionally valid if it recognises a pre-existing inequality and acts in aid of amelioration of the effects of such pre-existent inequality".
84. Now coming to the question of binding nature of the instructions, the word "prohibited" has been specifically used, which means illegal, unlawful, forbidden or banned. In Black's Law Dictionary 9th Edition the word "prohibit" means forbid by law, to prevent or hinder.
85. The use of negative words clearly indicates the intention that the provision has to be followed. Prohibition or negative can rarely, if other be directory and this is so even if the statute provides no penalty is for disobedience.
86. As observed by Subba Rao, J. in M. Pentiah Vs. Muddala Veeramallappa, AIR 1961 SC 1107 negative words are clearly prohibitory and are ordinarily used as a legislative device to make a statute inoperative. As the instructions given by using negative words are necessarily to be followed even if a cue is taken as to how the instructions are to be interpreted, although, as already observed rules of statutory interpretation are not strictly applicable, where only administrative instructions are involved, such instructions have to be followed in letter and spirit as they have been given unless they are contrary to any statutory provision.
87. In the present case, even in the Rules of 2008 there is nothing to indicate that there is anything contrary to the instructions so given at every stage of the examination. Therefore, it can be safely concluded that the candidates were under obligation to strictly follow such instructions and it is only its violation that has created unequal classes and the arbitrary action of the respondent authorities in treating these two unequals as equals while evaluating their O.M.R. sheets, is arbitrary and is thus, hit by Article 14 of the Constitution of India.
88. Without going into much details, reference can be made to several judgments of the Hon'ble Apex Court where treating unequals as equals was found to be hit by Article 14 of the Constitution of India- U.P.P.C.L. Vs. Ayodhya Prasad Mishra, 2008 (10) SCC 139; Indra Sawhney Vs. Union of India, 2000 (1) SCC 168; Secretary, Finance Department Vs. West Bengal Registration Service Association, 1993 Supp. (1) SCC 153; Param Chand Somchand Shah and another Vs. Union of India, 1991 (2) SCC 48; Direct Recruitment Class II Engineering Officers Association Vs. State of Maharashtra and others, 1990 (2) SCC 715; Builders Association Vs. Union of India and others, 1989 (2) SCC 645; All India Sainik School Employees Association Vs. Sainik School Society and others, 1989 Supp. (1) SCC 205 and Union of India Vs. Tulsi Ram Patel, 1985 (3) SCC 398.
89. Now the question is as to how this action of inclusion of the class of candidates, who have used whitener or blade in the final result has affected the results and how the second class i.e. those, who have followed the instructions stands affected is to be seen.
90. This Court has directed the respondent Board to submit report of Committees as constituted by the Board itself to examine this issue. The original reports were submitted by the Board and the original O.M.R. sheets were also produced in view of the direction given by this Court.
91. The submission of learned Advocate General as already noticed, was that a very small percentage of questions/marks were affected, which does not effect the net result. The submission is that a perusal of records shows that total number of candidates who have appeared in the main examination were 14256 and each one has answered 150 questions and thus the total number of question answer by all the candidates were 21,38,400 and it was found that in 5486 answers some material like whitener or blade etc. was used, which forms only 0.256% of the total answers given by all these candidates which clearly indicates that this percentage is insignificant and is liable to be ignored. The argument is that a total number of 5,01,317 had applied for this recruitment against the vacancy of 4010 posts and only 3801 candidates were declared successful and thus out of 125 candidates only one candidate has been selected and therefore it has not materially affected the final result dated 16.3.2015.
92. As already noted, two Committees were formed, the original Committee report produced before this Court indicates that these two Committees were formed to identify and to segregate O.M.R. sheets on which whitener or blade etc. has been used and to submit report thereof. Third Committee was formed to check authenticity/correctness the work done by the first two Committees. The Committee has reported that total 21,28,400 questions were involved out of which whitener and blade etc. was used on 5486 which forms only 0.256%. It has further reported that out of these 5486 no marks were given for 3770 answers by the scanning machine and therefore total questions in dispute are only 1716. The report dated 12.2.2015 further reveals that 3038 candidates have used whitener or blade. This report was given by Sri Amit Srivastava, Project Manager, Manipal Technologies Limited (Outside Expert Agency), who was engaged for this purpose.
93. Subsequently, after submission of this expert report by Manipal Technologies Limited these 3038 O.M.R. sheets were re-checked by the officers/officials of the Recruitment Board and 141 O.M.R. sheets were taken out by them and it was reported that use of whitener or blade etc. is not found on such O.M.R. sheets. It is not understandable as to why after submission of the report by outside expert agency, who is expert in the field of evaluation by O.M.R. sheets, rechecking was done manually by the officials of the Board? No reason whatsoever has been assigned in any of the reports submitted by the Committee for undertaking such exercise. It is also surprising that subsequently such 141 O.M.R. sheets, which were excluded by the officials of the Recruitment Board, were again included in the total number of O.M.R. sheets i.e. 3038 on which the experts i.e. Manipal Technologies Limited found use of whitener or blade etc. Again, no reason has been assigned for the same
94. Since this exclusion and re-inclusion created doubt in my mind, therefore, the envelops containing such 141 O.M.R. sheets (excluded O.M.R. sheets) were opened and checked and it was found that use of whitener or blade etc. is visible by naked eyes itself for which even no extra light or magnifying glass is required. Therefore, interference by the Recruitment Board in the work of the outside expert body creates doubt on the functioning of the Board. It appears that subsequently good sense prevailed and such 141 excluded O.M.R. sheets were re-included in 3038 O.M.R. sheets on which use of whitener or blade etc. was reported by the outside expert body. Therefore, I am not indulging further in the issue of exclusion and re-inclusion of such 141 O.M.R. sheets as this question has become irrelevant in so far as the net result of the controversy involved is concerned.
95. The submissions of learned Advocate General on the effect of use of whitener or blade etc. on O.M.R. sheets appears to be very attractive, however, on perusal of original records and the data supplied with the original records clearly indicates that the same are absolutely misconceived and fallacious and are liable to be rejected.
96. The data analysis clearly indicates that 14,256 candidates have appeared in the main examination meaning thereby a total number of 14,256 O.M.R. sheets were evaluated, out of which it was found that whitener or blade etc. was used on 3038 O.M.R. sheets and as such 21.31% candidates have used whitener or blade etc., which is sizeable number. A total number of 810 candidates were selected out of 3038 candidates, who have used whitener or blade etc. and this percentage comes to 26.66% of 3038 candidates. This figures of 810 candidates, who have used whitener or blade etc. and have been selected comes to 5.68% of the total figure of 14,256 candidates, who have appeared in main examination. This clearly indicates that not only the candidates who have used whitener or blade is as high as 26.66% and has materially displace the candidates who have followed the instructions but even the net result effected is 5.68% and not as less than 1% as being argued by the State/State Authorities. Therefore, the category of candidates who have followed the instructions is materially effected and stand discriminated and would substantially gain if such category of candidates who have violated the instructions is excluded from final result.
97. Looking from the point of view of the evaluation of the OMR sheets by scanning machines, taking users and non-users as two different classes or categories i.e. those who have "violated the instructions" and those who have "followed the instructions", both are treated as equal at the stage of evaluation process. This, not only discriminated the second category but also rendered the instructions meaningless or say worthless.
98. Even when two views are possible, the question would arise as to which view should be taken? In the present case, the selection is for disciplined force, where following instructions of superior even oral, is important. Further, the State had taken a stand not only in Clause 7.3 of the instructions dated 2.9.2014 but also in their instructions/narration filed before this Court that OMR sheets on which whitener/blade has been used, will not be evaluated and have also constituted three Committees for this purpose. Now the State authorities cannot be permitted to take somersault. Admittedly, violation of any specific instructions, which uses the word 'Prohibited', cannot be regarded as innocent mistake on the part of a candidate, and the same cannot be ignored either by the recruiting body i.e. the Board or by a Court of law. In other words, even if arguments or grounds taken by all the sides i.e. petitioner and the Board/State and the respondent-candidates are taken to be equally strong, the question would arise in whose favour decision should go? This leaves no doubt in my mind that the verdict should go in favour of the category/class of candidates who have followed the instructions i.e. the petitioners. I find support in my view from the decision of Apex court in the case of Secretary, Tamil Nadu Public Service Commission Vs. A.B. Natrajan (supra) as already discussed.
99. Therefore, I am of the opinion that categories were clearly formed before the process of evaluation of O.M.R. sheets started i.e. one "those who violated the instructions" (respondent candidates) and two, "those who followed the instructions" (the petitioners). In other words, this clearly means that two categories with pre-existing inequalities before O.M.R. sheets were put to evaluations/scanning were formed and the scanning without making any distinction, is thus, as per Ajay Hasia and others Vs. Khalid Mujib Sehravardi (supra) and Roop Chand Aklakha and others Vs. D.D.A. and others (supra) and other cases already referred to above, hit by Article 14 of the Constitution of India.
100. Thus, answers to questions so formulated are:-
(a) In the present case the instruction given at the time of main written examination prohibiting use of whitener or blade was mandatory in nature and was to be followed strictly;
(b) The candidates (the petitioners) who have not used the whitener or blade stand discriminated and such action of the Board is hit by Article 14 of the Constitution of India; and
(c) The Board is under obligation to follow its own instructions, and therefore, action of the Board is arbitrary and unreasonable and is hit by Article 14 of the Constitution of India.
101. Now as a necessary consequence, question arises as to whether entire selection process is to go or such candidates can be segregated? On the strength of All India SC & ST Employees' Association and another Vs. A. Arthur Jeen and others; Union of India and others Vs. Rajesh P.U. Puthuvalnikathu and another; Ashok Lenka Vs. Rishi Dikshit and others; East Coast Railway and another Vs. Mahadev Appa Rao and others (all supra), I am of the opinion that there is no need to quash the entire result and interest of justice would be served if all such candidates who have used whitener or blade are excluded from the final result dated 16.3.2015 and the final result is prepared afresh.
102. The original file containing the reports of the Committees in a sealed envelop and OMR sheets in two locked boxes, one envelop marks as 'Gopniya Dastavej' and one shadow file are hereby returned to Dr. Y.K. Srivastava, learned Standing Counsel.
103. In the interest of all parties, it is further provided that in future specific instruction, whether use of whitener or blade would lead to non-evaluation of O.M.R. sheet or restriction on use of such material is only by way of precaution, must be given in bold letter to avoid any controversy leading to unnecessary litigation.
104. Consequently, the writ petition stands allowed. The impugned final result dated 16.3.2015 is set aside only to the extent of the candidates who have used whitener/blade on their answer script (OMR sheets) of the main examination for selection to the post of Sub-Inspector (Civil Police) and Platoon Commander, P.A.C. Joint Examination, 2011 held on 14th September, 2014. A direction is issued commanding the U.P. Police Recruitment and Promotion Board, Lucknow to prepare the final result afresh after excluding such candidates, as noted above, within a period of six weeks from today.
105. There shall be no order as to costs.
Order Date :- 29.5.2015
P.S/A.A./Lalit Shukla
