Udit Saikia vs The State Of Assam And 4 Ors
2023 Latest Caselaw 4204 Gua

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GAHC010224492023




                      THE GAUHATI HIGH COURT
  (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                        Case No. : WP(C)/5948/2023

         UDIT SAIKIA
         S/O- KARUNA SAIKIA, R/O- VILL.- BARANGABARI, P.O. BARANGABARI,
         P.S. SIPAJHAR, DIST. DARRANG, ASSAM, PIN- 784522.



         VERSUS

         THE STATE OF ASSAM AND 4 ORS
         REP. BY THE COMM. AND SECY. TO THE GOVT. OF ASSAM, PERSONNEL
         (A), DISPUR, GHY-6, DIST. KAMRUP(M), ASSAM

         2:THE PRINCIPAL SECRETARY
          GOVT. OF ASSAM
          PERSONNEL (A)
          DEPARTMENT
          DISPUR
          GHY-6
          DIST. KAMRUP(M)
         ASSAM

         3:THE ASSAM PUBLIC SERVICE COMMISSION
          REP. BY ITS CHAIRMAN
          JAWAHARNAGAR
          KHANAPARA
          GHY-781022
          DIST. KAMRUP(M)
         ASSAM

         4:THE SECRETARY
         ASSAM PUBLIC SERVICE COMMISSION
          JAWAHARNAGAR
          KHANAPARA
          GHY-781022
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              DIST. KAMRUP(M)
              ASSAM

              5:THE JT. SECY
              ASSAM PUBLIC SERVICE COMMISSION
               JAWAHARNAGAR
               KHANAPARA
               GHY-781022
               DIST. KAMRUP(M)
              ASSA

Advocate for the Petitioner         : MR F KHAN

Advocate for the Respondent : GA, ASSAM




                                               BEFORE
                    HON'BLE MR. JUSTICE SANJAY KUMAR MEDHI


       For the Petitioner       :       Shri F Khan, Advocate,
                                        Ms. M Glory, Advocate.


       For the Respondents :           Shri TJ Mahanta, Sr. Advocate, APSC,
                                        Shri SR Baruah, Govt. Advocate, Assam,
                                        Ms. P Sarma, Advocate.


     Date of Hearing        :         10.10.2023.

     Date of Judgment :               10.10.2023.



10.10.2023.
                                       Judgment & Order

     Heard Shri F Khan, learned counsel for the petitioner. Also heard Shri T.J.
Mahanta, learned Senior Counsel assisted by Ms. P Sarma, learned counsel appearing
for the APSC who had also produced the instructions including the original OMR sheets
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of the petitioner. Shri S.R. Baruah, the learned State Counsel is also present.


2.    Pursuant to the order dated 06.10.2023, Shri Mahanta, learned Senior Counsel
has obtained the written instructions. Considering the facts and circumstances and the
instructions received, the writ petition is taken up for disposal at the motion stage.

3.    The petitioner was an aspirant for the post of Assistant Engineer (Civil) under
the PWD which was notified vide an advertisement dated 15.03.2023 for filling up 244
nos. of posts. The examination had consisted of an OMR based Screening Test
followed by a viva-voce. It is the case of the petitioner that in the written examination
which was OMR based, as per his assessment, he should have scored 121.5 marks.
However, persons securing marks of 114 and 112 have been selected for interview
and therefore, the petitioner has not been dealt fairly and transparently.


4.    On the other hand, Shri Mahanta, the learned Senior Counsel has placed before
this Court the written instructions including the OMR sheet of the petitioner in a sealed
cover. It is submitted that the exclusion of the petitioner from the shortlisted
candidates is not because of the projection made by the petitioner but because of the
fact that the petitioner did not follow the guidelines meant for the candidates while
filling up the OMR sheet. It is the specific case of the Commission that there is a
requirement to darken the Roll No., Test Booklet No. and Series No. and so far as the
Series is concerned, such guidelines were not followed by the petitioner as there is no
darkening of the Series. The aforesaid submission made on behalf of the Commission
is also found substantiated by the original OMR sheet of the petitioner which has been
placed on record.


5.    Shri Mahanta, the learned Senior Counsel has also placed reliance upon the
following case laws wherein it has been laid down that it is a mandatory requirement
for following the guidelines by the candidates in an examination conducted on the
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basis of OMR sheet.

            (i)              State of Tamil Nadu vs. G. Hemalathaa & Anr. ,
                       (2020) 19 SCC 430,

            (ii)            APSC & Anr. vs. Izaz Yusuf Ahmed & Anr., 2019 (3)
                       GLT 754,

            (iii)           Aatreyee Sharma vs. State of Assam & Ors. [Order dated
                       27.06.2023 in WP(C) 3801/2023].



6.    In the case of G. Hemalathaa (supra), the Hon'ble Supreme Court was
considering a matter pertaining to instructions to be followed by a candidate
appearing in a recruitment process. In the said case, though the High Court had come
to a conclusion that there was infraction of the instructions, a sympathetic
consideration was made on humanitarian grounds. However, the Hon'ble Supreme
Court did not approve the said approach and has observed as follows:


            "10. In spite of the finding that there was no adherence to the Instructions, the High
            Court granted the relief, ignoring the mandatory nature of the Instructions. It cannot be
            said that such exercise of discretion should be affirmed by us, especially when such
            direction is in the teeth of the Instructions which are binding on the candidates taking
            the examinations.
            ...

...

13. After giving a thoughtful consideration, we are afraid that we cannot approve the judgment of the High Court as any order in favour of the candidate who has violated the mandatory Instructions would be laying down bad law. The other submission made by Ms Mohana that an order can be passed by us under Article 142 of the Constitution which shall not be treated as a precedent also does not appeal to us."

7. In the case of Izaz Yusuf Ahmed (supra), a Division Bench of this Court was considering a matter of identical nature wherein the answer sheets were in the OMR Page No.# 5/7

format and the series was also required to be darkened which was not done. The learned Single Judge though opined that the mistake was of the candidates, the same was unintentional and was a bona fide mistake and further that the candidates could not gain anything by such non-darkening. The said view was however disapproved by the Hon'ble Division Bench and by relying upon a decision of the Hon'ble Supreme Court, the following has been laid down:

"12. A similar question had fallen for consideration before the Hon'ble Supreme Court in Civil Appeal No. 3899/2019 [SLP (C) No. 35187/2017] in the case of State of Uttar Pradesh & Ors. Vs. Upendra Nath Yadav. In the aforesaid case, the candidate had appeared for Uttar Pradesh Civil Police and Platoon Commander Direct Recruitment Examination and he was given a Booklet having Code SPU- 02 No. 795933 of the Series-C, but he did not fill up the Booklet Series in the prescribed box of OMR Sheet. The candidate was not selected as he did not fill in the details in the prescribed box and his result was not declared on account of the said default. A writ petition having been filed by the candidate, a Single Judge of the High Court of Uttar Pradesh directed the respondents therein to evaluate the OMR Sheet of the candidate and the said decision was affirmed by the Division Bench. The State of Uttar Pradesh filed Special Leave Petition before the Hon'ble Supreme Court. It was contended on behalf of the State of Uttar Pradesh that it had been specifically provided in the instructions given to the candidates that the candidate must fill up his Roll number and Question Paper Series in the Answer Sheet at the specified place failing which the Answer Sheet would not be evaluated and zero mark would be awarded. As the required box for Question Booklet Series was not filled up by the candidate, the OMR Sheet of the writ petitioner was not evaluated by the computer machine. Accepting the arguments in the above background of facts, the Hon'ble Supreme Court set aside the Page No.# 6/7

judgements of the High Court.

13. The ratio of the aforesaid case applies with all force to the present factual matrix. The entire examination process was designed on evaluation of the OMR Answer Sheets by computer and, therefore, in such a scenario, human intervention is not permissible.

14. In view of the above discussion, we are of the considered opinion that the impugned judgement of the learned Single Judge cannot be sustained and, accordingly, the same is set aside and quashed."

8. In the case of Aatreyee Sharma (supra), this Court was again considering a similar situation involving darkening in the OMR sheet. By relying upon the case of G. Hemalathaa (supra) and also the case of Izaz Yusuf Ahmed (supra), relief was denied to the petitioner in that case.

9. Therefore, following the principles laid down by various judicial pronouncement, this Court is of the view that the requirement for correctly filling up the OMR sheet being mandatory in nature. Further, such verification and evaluation being done through the computer, the requirement of darkening of the relevant circles cannot be held to be a mere technical defect. Further, when such verification is done through the computer, in absence of such darkening of any of the boxes containing various aspects of a candidate and the answer script, the identity of the candidate would not be discernible.

10. In view of the above, this Court is of the opinion that no case for interference is made out and accordingly, the writ petition is dismissed.

11. The written instructions dated 06.10.2023 is made part of the records.

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12. The OMR sheet, in original is returned back to the learned counsel for the Commission.

13. No costs.

JUDGE

Comparing Assistant