Dharmender Grewal vs University Grants Commission
2015 Latest Caselaw 4973 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                        Date of decision: 14th July, 2015

+                         W.P.(C) 3550/2014

       DHARMENDER GREWAL                        ..... Petitioner
                  Through: Mr. Sumit Kumar, Advocate with
                           Mr. Palav Agarwal, Advocate.

                                Versus

    UNIVERSITY GRANTS COMMISSION                  ..... Respondent

Through: Mr. Arjun Harkauli, Advocate CORAM:

HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW

1. The petitioner appeared in the National Eligibility Test (NET) held by

the respondent University Grants Commission (UGC) on 29th December,

2013 and has remained unsuccessful therein. It is the case of the petitioner

that he remained unsuccessful because in paper I of the said examination,

though, the Test Booklet containing questions distributed to him was of

Code 'Y' but in the OMR answer sheet of the said Test Booklet, he

erroneously shaded the code of his Test Booklet as 'X' instead of 'Y' and as

a result whereof his answer sheet was read by the Optical Mark Reader as

answering the questions in Test Booklet 'X' and which resulted in his

having very low marks in the said paper. It is the case of the petitioner that

had his OMR answer sheet been read with the correct Test Booklet Code

'Y', his answers would have been found to be correct, making him

successful in the said examination.

2. The petitioner has filed this petition seeking a direction to the

respondent UGC to re-check his OMR answer sheet of the aforesaid paper,

with the correct code.

3. Notice of the petition was issued and pleadings have been completed.

4. I have heard the counsels.

5. The counsel for the petitioner has raised three contentions in support

of his claim. Firstly, it is contended that the OMR answer sheet, besides

being required to be signed by the candidate, is also required to be signed by

the Invigilator under the following endorsement:

"I hereby Certify that I have checked the following information of the Candidate Name, Roll Number, Subject Code, Coordinating Institution and Test Booklet Code of Paper-I".

it is argued that even if the petitioner had committed mistake in

shading the wrong code in OMR answer sheet, it was the duty of the

Invigilator to have corrected the said mistake and thus, the mistake besides

being of the petitioner, was also of the Invigilator appointed by the

respondent UGC and the petitioner cannot be penalised for the mistake of

the Invigilator. Secondly, it is contended that OMR answer sheet, besides

requiring to be shaded at the correct code of the Test Booklet, also bears a

number and the mistake should have been detected by the Optical Mark

Reader from the said number also and if had been detected, the petitioner

again would have been correctly marked. Lastly, it is contended that the

machine cannot be allowed to take over the job in entirety and such human

error should be permitted to be corrected by human.

6. I am not inclined to, in exercise of writ jurisdiction under Article 226

of the Constitution, grant the relief sought by the petitioner simply for the

reason that the examination in which the petitioner had appeared is not a

once in a lifetime examination in which the petitioner has lost a chance to

appear for ever. It is not in dispute that the said examination is held twice a

year. If the petitioner is meritorious, there should not be any doubt in his

mind of his ability to clear the same. When, (a) the grievance with which

the petition is filed is attributable to the petitioner himself; and, (b) the

injury is not irreparable and the petitioner can regain what he has lost owing

to his own mistake, the question of invoking Article 226, in my opinion,

does not arise.

7. The language of Article 226 shows that the issuing of writs or

directions by the Court is founded only on its decision that the right of an

aggrieved party has been infringed. The jurisdiction under Article 226 can

be invoked only to protect an existing right and not to confer a new right.

Unless a right to the relief claimed is established, no writ, direction or order

can be issued under Article 226. Reference if any required in support

thereof, can be made to State of Orissa Vs. Ram Chandra Dev and Mohan

Prasad Singh Deo AIR 1964 SC 685 and to The Rajasthan State Industrial

Development and Investment Corporation Vs. Diamond and Gem

Development Corporation Ltd. (2013) 5 SCC 470 where it was held that the

primary purpose of a writ of mandamus, is to protect and establish rights

and to impose a corresponding imperative duty existing in law. The

petitioner here, has not shown any right against the respondent UGC or

otherwise in law, to have his OMR answer sheet to be read vis-a-vis Test

Booklet of Code 'Y' when he himself had marked the said OMR sheet with

Code 'X'. Similarly, the petitioner has not shown any obligation of

respondent UGC to correct the mistake of the petitioner. The petitioner has

also not shown lest established any right to have his OMR answer sheet re-

read by Optical Mark Reader or otherwise with the correct Code 'Y'. In the

absence thereof, invocation of Article 226 is misconceived. Of course, the

writ remedy is designed to promote justice. However, the grant or refusal of

the writ is at the discretion of the Court and which the Court has to exercise

taking into consideration a wide variety of circumstances, inter-alia, the

facts of the case, the exigency that warrants such exercise of discretion, the

consequences of grant or refusal of the writ, and the nature and extent of

injury that is likely to ensue by such grant or refusal.

8. It cannot also be lost sight of that the examination concerned is to test

the eligibility of the petitioner to be a teacher. A teacher has the task of

shaping the future of the students and the teacher is not expected to commit

a mistake as aforesaid. A teacher susceptible to such mistakes can be fatal

to the students and the system of education. The possibility of the

petitioner, if allowed to get away with such mistake, not realising his

mistake or developing a casual attitude cannot be ruled out. A teacher,

which the petitioner aspires to be, has to lead by example and be a role

model for the students and I am of the opinion that the petitioner will be a

much better teacher if proves his mantle by taking and clearing the

examination. The petitioner, if allowed to get away with his mistake is

unlikely to inculcate the need for care, caution and attention in his

prospective pupils also.

9. The Supreme Court in State of Maharashtra Vs. Prabhu (1994) 2

SCC 481 held that a teacher who is expected to instill discipline in students

and prepare them for future, if found assisting or permitting copying in

examination, cannot be considered to be a proper person who can be

entrusted with such duties and responsibilities as are required to be

discharged and such a person would be ineligible for appointment. The

same sentiment was repeated in Manager, Nirmala Senior Secondary

School, Port Blair Vs. N.I. Khan (2003) 12 SCC 84 where it was observed

that the minds of students are like clay which needs to be shaped into

beautiful moulds by the teachers and to a great measure the behaviour,

character, reputation of the teachers leaves imprints in the minds of the

students. If the conduct, behaviour and reputation of teachers is full of

blemish that would not be for the interest and in the welfare of the students.

Later, in Sushmita Basu Vs. Ballygunge Siksha Samity (2006) 7 SCC 680

it was also held that the profession of teaching is not an employment in the

sense of it being merely an earner of bread and butter, it is a noble

profession. The Supreme Court proceeded to hold that a teacher fulfils a

great role in the life of the nation; he is the 'guru'; it is the teacher, who

moulds its future citizens by imparting to the students not only knowledge

but also a sense of duty, righteousness and dedication to the welfare of the

nation, in addition to other qualities of head and heart. All this was

reiterated in State of Orissa Vs. Mamata Mohanty (2011) 3 SCC 436 where

it was also observed, that it is essential to maintain high academic standards,

discipline and academic rigour, if the country is to progress and that we

cannot afford any negligence in applying criteria of merit in the selection of

teachers. Appointment of qualified and efficient teachers was held to be

sine qua non for maintaining high standards of teaching in any educational

institution.

10. As far as the mistake attributed to the Invigilator is concerned, the

same does not in any way dilute or take away from the mistake of petitioner.

The petitioner, from the rules of the examination has been unable to show

that upon the mistake made by examinee escaping the invigilator also, the

petitioner's mistake is to be ignored. Rather, the rules place the onus

squarely on the examinee.

11. It is also not the case of the petitioner that the Optical Mark Reader

was to read the OMR answer sheet in the context of the number given

thereon and not the code filled by the examinee or that in the event of

inconsistency between the two, the number was to prevail over the code. If

the Optical Mark Reader was designed to read the OMR answer sheet vis-a-

vis Test Book as per the code, the argument today that it should have read

vis-a-vis number, is entirely misconceived.

12. The scheme of the examination, which remains unchallenged, having

provided for the marking to be done by Optical Mark Reader, the petitioner

cannot also demand manual checking of answer sheet. There is thus no

merit in the last contention also.

13. The petition is dismissed. However, the same will not come in the

way of the petitioner taking the examination again, if otherwise eligible

therefor.

No costs.

RAJIV SAHAI ENDLAW, J.

JULY 14, 2015 bs..

(Corrected & released on 25th July, 2015)