Delhi High Court
Anuj Yadav vs Union Of India & Anr. on 20 November, 2020
$~A-17
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: 20.11.2020
+ W.P.(C) 8510/2020 and CM Nos.29764/2020 and 27541/2020
ANUJ YADAV ..... Petitioner
Through: Mr. Gaurav Goel, Advocate
versus
UNION OF INDIA & ANR. ..... Respondents
Through: Ms. Monika Arora, Advocate for
R-1.
Mr. Naresh Kaushik and
Mr. Vardhman Kaushik, Advocates
for R-2/UPSC.
CORAM:
HON'BLE MS. JUSTICE JYOTI SINGH
JYOTI SINGH, J. (ORAL)
1. Present petition has been filed by the Petitioner for quashing the
examination held on 06.09.2020 pursuant to an Examination Notice
issued by Respondent No.2 / UPSC as also all consequential proceedings
emanating therefrom, and for issuance of a writ of mandamus directing
the Respondents to reconduct the examination afresh and allow the
Petitioner to reappear. Alternatively, a direction is sought to the
Respondents to allow the Petitioner to appear in the next examination due
to be held in the year 2021.
2. The facts being in a narrow compass are that the National Defence
Academy (NDA) and Naval Academy (NA) Examination which were
earlier conducted twice in a year, in April and September every year, due
to Pandemic Covid-19 could not be held in April, 2020. The Petitioner
had applied for the examination scheduled to be held in April, 2020.
3. On 16.06.2020, Respondent No.2 issued an advertisement for the
2020 Examination, to be held on 06.09.2020. Pursuant to the
advertisement, Petitioner applied on 22.06.2020 and appeared for the
examination on 06.09.2020 conducted at Bhopal Institute of Technology,
Bhopal.
4. As per the case set out by the Petitioner, irregularities were
committed by the Invigilators during the examination process, including
change of question paper and OMR sheets resulting in loss of
approximately 30 minutes of examination time, adversely affecting, about
96 candidates. Petitioner vide e-mail dated 08.09.2020 reported the said
irregularities to Respondent No.2, followed by a Reminder email on
18.09.2020.
5. According to the Petitioner, Respondent No. 2 sent an email on
25.09.2020 enclosing a letter dated 23.09.2020, whereby Respondent
No.2 admitted the irregularities, but stated that on account of the said
irregularities, only 4-5 minutes were lost. Thereafter, again emails were
sent by the Petitioner wherein the Petitioner reiterated his stand of loss of
crucial time of about 30 minutes which affected the number of questions
which he could attempt, during the examination. Failing to get a
favourable response, the Petitioner approached the Court by filing the
present petition.
6. Learned counsel for the Petitioner contends that the examination in
question was to start from 2.00 pm. on the given date and the OMR sheets
were distributed to the Candidates at the Centre at 1.50 p.m. to enable
them to fill their details in the sheets. Petitioner was also given the OMR
sheet at 1.50 p.m. and he filled the requisite details. Thereafter, Petitioner
perused the question paper and solved a few questions on the question
paper itself. Before the Petitioner could transfer the answers to the OMR
sheets, the Invigilator realized that the question papers and the OMR
sheets were wrongly distributed and collected back the documents from
all candidates, and thereafter redistributed fresh OMR sheets and question
papers to all candidates. The candidates including the Petitioner had to
refill their details in the OMR sheets, for which ten minutes were given.
This entire process consumed about 30 minutes and crucial time of the
candidates was lost.
7. It is contended that there were 96 candidates at that particular
Centre and it is not humanly possible to have collected and redistributed
the OMR sheets and question papers to all candidates in a span of 4-5
minutes, and therefore the stand of UPSC that only a time of 4-5 minutes
was lost is completely false and incorrect. Assuming without admitting
that it took only 4-5 minutes to undertake the entire exercise, even in
those 4-5 minutes a candidate would have solved 5-6 questions, and in a
competitive examination, it could change the result of a candidate to his
benefit or detriment. The final result is based on cumulative marks
obtained in written examination and SSB interview and therefore the
irregularity as committed by UPSC has caused great prejudice to the
Petitioner, as he was unable to attempt all questions.
8. It is further contended that assuming that the entire exercise of
distributing the question papers and OMR sheets had to be undertaken
again, Respondent No.2 should have given extra time to the candidates to
compensate for the loss of time, due to the fault of the
Invigilators/Supervisors. In any case, on account of the Pandemic Covid
19, Petitioner has already lost one chance to appear in April, 2020 and
therefore, the Petitioner ought to have been given an extra chance to
appear at least in the next examination, which is due to be held in the year
2021.
9. Short reply has been filed on behalf of the UPSC. It is averred in
the reply that the petition is based on absolutely false premise and
deserves to be dismissed on the ground that the Petitioner has
misrepresented the facts. Petitioner has averred that Respondent No.2 in
its email dated 25.09.2020 admitted the irregularities, whereas on a
perusal of the said email, it is evident that there is no such admission by
Respondent No.2. On the contrary, the correct version of the email is that
in the second session, the question papers were distributed at 1.55 p.m.
and some question papers were distributed wrongly. The OMR sheets of
some candidates were changed, which took 4-5 minutes and hence there
was no loss of time for the candidates and neither has any complaint been
received from any other candidate.
10. Mr. Kaushik appearing for the UPSC, based on the short reply,
argues that there were 75 candidates in 7 rows in the particular
examination hall in which the Petitioner took the examination. There
were 8 invigilators i.e., one invigilator for each row. 21 candidates were
absent out of total 96 candidates who had to take the examination. Thus,
each invigilator had to distribute question papers and OMR sheets only to
9-10 candidates. He submits that scrutiny of the records shows that a
majority of the candidates have attempted questions upto serial no. 150
i.e., the last question of Paper-II including the Petitioner, who himself
attempted upto question no. 150. Two candidates have even qualified in
the examination from the said hall. He further submits that Petitioner is a
single candidate out of 75 candidates who has raised any grievance, and
that no complaint has been received from any other candidate. The report
of the Coordinating Supervisor, Bhopal was obtained by the Commission
by forwarding the complaint of the Petitioner, and the Report reveals that
the stand of the Petitioner is incorrect.
11. In Rejoinder, learned counsel for the Petitioner reiterates that on
account of the alleged irregularities, an approximate time of 30 minutes
was lost in attempting the question papers. Counsel rebuts the stand of
Mr. Kaushik that the Petitioner has made any misrepresentation, and
according to him the email dated 25.09.2020 can only be interpreted to
conclude that Respondent No.2 has clearly admitted that there were
irregularities in distribution of the question papers and OMR sheets, and
therefore the only question that arises is if it resulted in loss of 30 minutes
or only 4-5 minutes, as alleged by Respondent No.2.
12. Learned counsel for the Petitioner vehemently argues that the
answering Respondent has not stated in the reply nor placed any material
on record to evidence that only 4-5 minutes were lost. It is not disclosed
as to who conducted the inquiry into the issue, and no report whatsoever
has been placed on record. In so far as the invigilator or the Coordinating
Supervisor is concerned, it goes without saying that they will only give a
report in their favour and will not support the case of their own
misconduct or negligence.
13. In so far as the argument of Respondent No.2 that all candidates
including the Petitioner had attempted upto the last question is concerned,
learned counsel for the Petitioner contends that it is not necessary that
candidates including the Petitioner attempts the question paper in a
seriatim from 1 to 150, and it is possible that candidates can attempt
question no.150 first and then attempt the other questions. Therefore, the
fact that the Petitioner attempted question no.150 is hardly of relevance to
show that the time loss did not impact the examination process.
14. I have heard the learned counsels for the parties and examined the
rival contentions.
15. The focal point argued by the Petitioner is that on account of the
redistribution of the OMR sheets and the question papers, crucial time in
attempting the question paper, during the conduct of the examination was
lost and this has adversely affected the Petitioner, who resultantly could
not attempt all the questions and is finally unsuccessful in clearing the
examination. The parties are ad idem that in fact for some candidates, the
OMR sheets / question papers were wrongly distributed and had to be
collected back and fresh OMR sheets and question papers were
redistributed, resulting in loss of time. The dispute, however, is with
respect to the time lost in undertaking the entire exercise. While it is the
case of the Petitioner that approximately 30 minutes were lost, it is the
stand of Respondent No. 2 that only 4-5 minutes were lost. Respondent
No. 2 has supported its stand by arguing that there have been no
complaints from any other candidate, and that the candidates including
the Petitioner have attempted upto the last question being question
no.150, coupled with the fact that two candidates have cleared the
examination from the same hall. Petitioner has contested the position by
arguing that it is not necessary that a candidate must attempt the question
paper in seriatim, and can start answering the questions in any pattern
including starting from the last question.
16. While it cannot be debated that if during the course of conduct of
any examination, the question papers or the answer sheets are collected
back and redistributed, it would result in loss of time, and in a given case,
loss of a few minutes could lead to a situation where candidates are
unable to attempt one or more questions, due to paucity of time. This
would have a direct impact on the scores of the candidate and would be
detrimental to the candidate in the competitive examination, where even a
single mark could effect the selection. The question, however, that arises
before this Court is whether the time lost on account of the redistribution
of papers was 4-5 minutes or approximately 30 minutes, and in case of
the latter, the number of questions that the Petitioner was unable to
attempt. Neither side has placed any material on record for the Court to
take a view on this issue one way or the other. In any case, this is an issue
which can only be substantiated and proved by leading evidence and is in
the realm of disputed questions of facts. Likewise, whether or not the
Petitioner attempted all questions in a seriatim from 1 to 150 or attempted
the question paper in a different seriatim starting from Question No. 150,
cannot be gone into in a writ petition under Article 226 of the
Constitution of India.
17. It is well settled by a catena of judgements that in a writ
jurisdiction, Courts cannot enter into disputed questions of facts. No
evidence can be led by the parties to substantiate their case one way or
the other as a party would do in a civil suit. This Court cannot therefore
enter into or appreciate the issue relating to the alleged loss of time
caused due to redistribution of the question papers and the OMR sheets or
its resultant effect on the number of questions attempted by the Petitioner.
At best, the Petitioner can be left to raise the said grievances in civil
proceedings and / or claim damages.
18. In my view, the grievances ventilated by the Petitioner and the
arguments canvassed being in the realm of disputed questions of facts and
evidence cannot be gone into in a writ petition, and on this short ground,
the writ petition cannot be entertained.
19. For the aforesaid reasons, the writ petition is dismissed. Liberty is,
however, granted to the Petitioner to take recourse to appropriate
remedies available to him to ventilate the grievances raised in the present
petition, in accordance with law. All pending applications are accordingly
dismissed.
JYOTI SINGH, J
NOVEMBER 20, 2020
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