Delhi High Court
Ajay Kumar vs Union Of India & Ors. on 4 August, 2016
$~12
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Decision : August 04, 2016
+ W.P.(C) 3137/2016
AJAY KUMAR ..... Petitioner
Represented by: Ms.Saahila Lamba, Advocate
versus
UNION OF INDIA AND ORS ..... Respondents
Represented by: Mr.Prasanta Verma, Senior Central
Government Counsel with
Mr.Rishesh Mani Tripathi, GP,
Advocate
CORAM:
HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
HON'BLE MS. JUSTICE PRATIBHA RANI
PRADEEP NANDRAJOG, J. (Oral)
1. Applying for the post of Constable (Crew) in the Water Wing of BSF,
the petitioner indicated that he was seeking the benefit of reservations for
members of the Scheduled Castes and was found eligible to compete and
was issued the admit card requiring him to take the written examination to
be held on December 06, 2015. The number of candidates being large, aid
of technology was taken, in that, the written examination was an objective
type paper requiring the candidates to mark the answers in an OMR answer
sheet by darkening the applicable circles for the correct answer. The OMR
sheet had likewise to be darkened to record the name, roll number and date
of birth of the candidate. The petitioner filled up the OMR sheet but forgot
to darken one of the block to record the date of birth. But this did not cause
any administrative inconvenience to tag the answer sheet and connect the
same to the petitioner; apparent from the fact that the optical reader read the
answer sheet and assigned the marks to the petitioner.
2. The result of written examination was declared by the respondents
and cut off marks for the post of Constable (Crew) in SC category was 45.
The answer key of question papers was also published by the respondents.
3. The name of petitioner was not featuring in the list of successful
candidates issued by the respondents. The petitioner matched his answer
sheet with the answer key provided by the respondents and to his utter
surprise found that though he would have obtained 66 marks his name was
not in the list of successful candidates.
4. In this view of the matter, the petitioner scanned/analyzed photocopy
of his answer sheet which was provided to him by the respondents and it
seemed that name of petitioner was not included in the list of successful
candidates despite securing more than cut off marks for the reason he did not
darken one of the block to record his date of birth.
5. This constrained the petitioner to file a writ petition being W.P.(C)
No.517/2016 before this Court essentially seeking the relief that petitioner
be permitted to appear in remaining phases of recruitment viz.
documentation and physical measurement, physical efficiency test and trade
test (second phase) and interview and medical examination (third phase).
Vide order dated January 22, 2016 this Court permitted the petitioner to
participate in remaining two phases of recruitment to the post of Constable
(Crew) as an interim measure.
6. The petitioner participated in the remaining two phases and to his
good fortune emerged successful therein.
7. After noting that petitioner has been successful in remaining two
phases of recruitment, vide order dated April 01, 2016 this Court disposed of
aforesaid petition filed by petitioner with liberty to the petitioner granted to
file a fresh petition challenging the action of the respondents in denying
appointment to petitioner to the post of Constable (Crew) on the sole ground
of petitioner not darkening one of the block to record the date of birth. An
order which surprises us for the reason there was no necessity to compel the
petitioner to file another writ petition because the issue at hand had already
arisen and was the point on which the parties were litigating in the said writ
petition.
8. Thus, the above caption petition has been filed by the petitioner and
we would treat this to be a sequel to the earlier writ petition.
9. In essence, the stand taken by the respondents to deny appointment to
the petitioner is that instructions prescribed in the OMR answer sheet
required the candidate to correctly fill his essential particulars including date
of birth and petitioner having not correctly darkened one of the block to
record the date of birth, the respondents are justified in denying appointment
to the petitioner.
10. The instruction relied upon by the respondents reads : 'you have to fill
and shade your Name, Roll No., Date of Birth, Mode, Religion, Category
and Question Booklet Series Code, because information's are essential for
evaluation of the Answer Sheet'.
11. The aforenoted instruction nowhere prescribes rejection of
candidature of a candidate on the ground of incorrect filling of particulars by
the candidate.
12. In the decision dated February 24, 2012 in W.P.(C) No.1004/2012
Delhi Subordinate Services Selection Board & Anr. Vs. Neeraj Kumar &
Anr. and the decision dated August 29, 2012 in W.P.(C) No.5334/2012
Deepak Dhankar Vs. Union of India & Ors. it was held that instructions
which are similar in nature to the one issued in the present case are directory
in nature and their violation do not warrant rejection of the candidature of a
candidate. Being relevant we note following observations made by this
Court in Deepak Dhankar's case (supra):-
"Highlighting this was the very issue with reference to a
similarly worded advertisement, in Neeraj Kumar's case
(supra) case, was opined upon, and to which reasons we
would only add that this requirement has to be treated as
directory and not mandatory especially when the post in
question is at the lowest rung of the ladder. The reason
being that for these posts, minimum qualification
prescribed is generally matriculate, and thus candidates
have low literacy."
13. It would also be relevant to note following observations made by the
Rajasthan High Court in the decision dated September 04, 2012 SB Civil in
Writ Petition No.9062/2012 Savita Budania Vs. State of Rajasthan & Ors.:-
"The respondents while making recruitment may avail
assistance of technology but at the same time a human
approach is also required to be kept in mind. The object of
holding competitive test is to have best available hand and
in this process merit should not be compromised just for
the reason that the mechanical procedure adopted do not
support the manual exercise. In the cases, if the human
error is rectified with all diligence at earliest possible, a
condonation of error is desirable."
14. To justify action of respondents of denying appointment to petitioner,
learned counsel for the respondents has relied upon a decision dated April
09, 2014 of the Punjab & Haryana High Court in CWP No.168/2013 Monika
Yadav Vs. Staff Selection Commission & Anr. where appointment was
denied to a candidate for the reason she had incorrectly darkened blocks to
record her roll number.
15. The decision in Monika's case (supra) relied upon by the respondents
is entirely distinguishable from the facts of present case for the reason the
candidate in the said case had incorrectly darkened blocks to record her roll
number, due to which reason the department could not tag her answer sheet
and connect the same to the candidate due to which reason her OMR answer
sheets were not evaluated at all and zero marks were awarded to her.
16. In the instant case, as already noted hereinabove the answer sheet of
the petitioner was not only tagged but even connected to him and evaluated
for marks.
17. The maxim de minimis non curat lex which is translated as 'law does
not concern itself with trifles' is squarely applicable in the present case and
thus petitioner cannot be penalized for a trivial careless mistake committed
by him of not darkening one block to record his date of birth.
18. In view of above discussion the present petition is allowed. A
mandamus is issued to the respondents to appoint the petitioner to the post
of Constable (Crew) in Water Wing in Border Security Force with
consequential benefits of seniority and pay to be fixed notionally. We deny
back wages.
19. No costs.
CM No.13384/2016
Dismissed as infructuous.
(PRADEEP NANDRAJOG)
JUDGE
(PRATIBHA RANI)
JUDGE
AUGUST 04, 2016/mamta
