Punjab-Haryana High Court
Rajeev vs State Of Haryana And Ors on 9 May, 2024
Author: G. S. Sandhawalia
Bench: G. S. Sandhawalia
Neutral Citation No:=2024:PHHC:056786-DB
LPA No. 2087 of 2023 2024:PHHC:056786-DB
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
LPA NO. 2087 OF 2023 (O&M)
RESERVED ON : MARCH 21, 2024
DATE OF DECISION : MAY 09, 2024
Rajeev ...Appellant
Versus
State of Haryana and others ...Respondents
CORAM : HON'BLE MR. JUSTICE G. S. SANDHAWALIA,
ACTING CHIEF JUSTICE
HON'BLE MS. JUSTICE LAPITA BANERJI
Present : Mr. Suryaveer S. Surjewala, Advocate,
for the appellant.
Mr. Deepak Balyan, Additional Advocate General, Haryana.
LAPITA BANERJI, J.
Consideration in the present Letters Patent Appeal is of an
order dated August 22, 2023, whereby the Hon'ble Single Judge dismissed
the writ petition by refusing to issue a writ of certiorari, quashing the result
of written examination dated September 8, 2015 (Annexure P-3) conducted
by respondent No.3/Haryana Staff Selection Commission (for short "HSSC)
and the final results dated September 27, 2015 Annexures P-7 and P-8
respectively. Furthermore, the Hon'ble Single Judge refused to issue a writ
of mandamus directing the Commission to revise the result of written
examination by considering the petitioner to be eligible and to conduct
interviews afresh.
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2. Facts of the case in brief are narrated hereinafter :-
i) The appellant applied for the post of Hindi Lecturer (School
Cadre) pursuant to an advertisement No.6/2006 dated July 20, 2006. The
selection to the advertised posts were made, barring 54 posts which were
kept vacant on account of pending litigations. The said vacant posts were
directed to be filled up from all the unsuccessful candidates by considering
their candidature afresh, pursuant to the decision of Hon'ble Supreme Court
in Civil Appeal No.4128 of 2012 "Poonam Rani v. State of Haryana".
ii) The Commission issued a notification dated June 15, 2015
inviting online applications from the unsuccessful candidates. The appellant
applied in response thereto and sat for the written examination held on
August 09, 2015. The results of the successful candidates were declared on
September 08, 2015. Since the appellant's candidature stood cancelled, his
result was not declared.
iii) The appellant's candidature had been cancelled by the
Commission on the ground that he had scratched the OMR sheet at question
No.28 which had resulted in damage at serial Nos. 27 and 29 as well.
3. It was contended on behalf of the appellant that as per the
conditions stipulated in the admit card, any stray mark or smudging on the
OMR sheet had to be taken as a wrong answer and only if there was
damage to the OMR sheet, the same would result in disqualification of a
candidate. The definition of the word damage as per oxford dictionary
meant physical harm that impaired value, usefulness or normal function of
something, but the stray mark or smudging on the OMR sheet could not be
construed as a damage unless its value, usefulness or normal function was
impaired. As the appellant's OMR sheet was already evaluated, it could not
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be contended by the Commission that the same was damaged or his
candidature on that account stood cancelled.
4. Furthermore, it was contended on behalf of the appellant that
the appellant scored 144 marks in the written examination which was far
above the marks of last selected candidate in general category who scored
132 marks. Therefore, the appellant had a right to be considered for
appointment against the vacancies which were kept reserved by way of
interim order dated October 07, 2015, passed in the writ petition.
5. Per contra, the learned counsel appearing for the State
submitted that the appellant's candidature was rightly cancelled since he
had damaged his OMR sheet. The said fact was ascertained by the
"Commission Evaluating Agency" and the appellant's case along with that
of 200 other candidates was considered and the whole exercise had been
done in a fair and bona fide manner.
6. The Hon'ble Single Judge found that admittedly the appellant
scratched his OMR sheet and proceeded to answer the issue whether
smudging/scratching led to damaging of the same. There were clear
instructions printed on the admit card of the candidates that damage to
OMR sheet would result in disqualification of a candidate. Furthermore,
similar instructions were given to the candidates in the examination hall
which were printed not only on the envelope containing the question paper
but also on the OMR sheet itself. Since 201 candidates had violated the
instructions by using white fluid, smudging of OMR sheets using erasers or
scratching the options against different answers, the Commission after
considering the relevant facts and circumstances, decided to reject the
candidature of all 201 candidates. Thus, no case of arbitrariness and mala
fide intention in rejection of his candidature by the Commission could be
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made out by the appellant as he stood on a similar footing like 200 odd
candidates who had violated the instructions.
7. The Hon'ble Single Judge relied on the Division Bench
judgment passed in "Reman Kumari v. Haryana Staff Selection
Commission" 2022 (1) PLR 210, to hold that the law governing the field on
the particular issue already stood settled. It has been held in unambiguous
terms that in the event of use of any eraser, nail, blade, white fluid,
whitener, the answer sheet would be liable to be rejected and candidature
would stand cancelled. Merely because the appellant's answer sheet had
been evaluated despite being damaged and he was found to have scored
more marks than the last selected candidate, the same could not be held to
be a ground for granting him reliefs in the writ petition. Therefore, in the
light of the undisputed facts and the position of law, the Hon'ble Single
Judge came to the conclusion that the appellant had damaged/smudged the
answer sheet and the decision of the Commission to cancel his candidature
could not be faulted with. The fact that the OMR sheet was evaluated prior
to Commission's decision to reject the candidature did not give any vested
right to the appellant to seek consideration for appointment on the basis of
marks awarded in such an evaluation.
8. With reference to the word "damaged", the Hon'ble Single
Judge opined that on account of smudging of OMR sheet by the appellant,
the same got damaged for the questions at serial Nos. 27 and 29. The
feasible harm caused to the sheet definitely had impaired its value,
usefulness and normal function as answers to those questions could not be
evaluated. While considering the meaning of word "damaged" in relation to
the OMR sheets, it was opined that the literal meaning of same may not to
be seen for arriving at a decision as the Commission decided the issue in the
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larger public interest, in order to maintain sanctity of the examination by
preventing any kind of cheating, tampering, manipulation or malpractice.
Therefore, the decision of the Commission did not suffer from any
irregularity or illegality.
9. This Court has perused the materials on record and heard the
arguments on behalf of the parties. It transpires that all the unsuccessful
candidates who applied for the post of Hindi Lecturer (School Cadre) were
directed to be considered afresh by conducting a written examination in
view of the decision of the Supreme Court in Civil Appeal No.418 of 2012
"Poonam Rani v. State of Haryana". The appellant appeared for the
written examination on August 09, 2020 when Set-B question paper was
allotted to him. There were four sets of question papers where all the
questions remained the same but serial numbers were different.
10. All the four sets of question papers and their answer keys were
uploaded on the website and objections were sought from the candidates
from August 11, 2015. The candidates submitted their objections. The
respondents vide notice dated August 20, 2015 intimated that the candidates
who had sent their objections till 5:00 PM on August 18, 2015 had been
forwarded to the Chief Examiner for consideration. The result was declared
by the Commission on September 08, 2015. On September 11, 2015, the
decision of the Commission to grant 08 grace marks to the candidates was
intimated to the candidates and final results were published on September
27, 2015. However, inadvertently the Commission did not grant the grace
marks as mentioned in the notice dated September 11, 2015. Therefore,
there was no change in the marks allotted to the candidates on September
08, 2015 and the final results declared on September 27, 2015.
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11. A total number of 3024 candidates appeared in the
examination, out of which the candidates who got Set-B were 758 in
number. 100 multiple choice questions were required to be answered
wherein each of the questions carried 2 marks. After re-evaluation it was
found that there had been a difference of 02 marks only in evaluation of
Set-B in pre and post objection answer key as the only disputed question
was the one at Serial No. 54. Only 638 candidates attempted the disputed
question No. 54 and 120 candidates did not attempt the same. Result of 545
candidates had not been affected by the change of answer key to the
disputed question as they had correctly opted for option (c).
12. The correct option for question No.54 was option (c) but 40
candidates selected the wrong option (a), 27 candidates selected the wrong
option (b), 25 candidates selected the wrong option (d) and one candidate
selected both options (c) and (d) to the said question No.54. Perusal of the
additional affidavit filed by Rajeev Dudeja on behalf of HSSC dated
September 11, 2017, would reveal the aforesaid facts. The list of candidates
who opted for the correct option along with list of the candidates who opted
for the wrong options have been annexed to the said affidavit.
13. Even though in the writ petition the issue of quashing the
impugned answer key in four sets of question papers was urged but in the
present Letters Patent Appeal primarily the issue with regard to smudging
of, or stray marks on the OMR sheets not affecting or damaging the same,
since had they been damaged, the OMR sheets could not have been
evaluated and the marks could not have been allotted, had been strenuously
argued.
14. This Court is of the considered opinion that a co-ordinate
Bench of this High Court in LPA No.1057 of 2023 "Kavita Rani and others
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v. Haryana Staff Selection Commission" decided on August 08, 2023, held
that the candidature of the incumbents would be liable to be cancelled in the
event there was smudging/scratching/erasing in the OMR sheet and there is
no pressing/logical reason to take a divergent view. The decision in Kavita
Rani's case (supra) relied on another Co-ordinate Bench's order dated
February 05, 2022 passed in LPA No.90 of 2022 "Suman v. State of
Haryana and others".
15. In LPA No.1922 of 2023 "Shri Bhagwan v. State of Haryana
and others" decided on February 02, 2024, this Bench was of the view that
the candidate had to be well aware as to how the answer the questions and if
he had not done so it was at his own peril as such. Therefore, the candidates
were expected to read and follow the instructions prior to answering the
questions in the OMR sheet. Relevant extract of LPA No.1922 of 2023 is
reproduced herein below :-
"xxx
8. In such circumstances, we are of the considered
opinion that the candidate was well aware as to how he has to
answer the questions and it had to be done in effective manner
by filling up the bubbles correctly, so that the electronic
scanner can pick up the same. If he has not done the same, it
was at his own peril as such. Counsel for the appellant could
not point out any clause or legal right as such on the basis of
which he can claim the relief. The right of re-correction would
only arise if there was any rule or regulation. In the absence of
the same the writ in the form of mandamus also would not be
maintainable. We also cannot rule out the fact that if such an
exercise is even permitted in one case, it would lead to a
Tsunami of cases flooding this Court on the same ground and
the selection process of 2006 having reached to the Apex Court
on an earlier occasion would never be finalized. Therefore, we
are of the considered opinion that for the reasons recorded
above no case is made out for entertaining the present letter
patent appeal and the same is accordingly dismissed in limine.
Xxx"
Therefore, after scratching/smudging the OMR sheets, if the candidates
were permitted to be considered afresh for selection by quashing the
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selection process then the same would lead to opening of flood gates and no
selection process would culminate into its logical conclusion.
16. In view of the discussion hereinabove, this Court is of the view
that learned Single Judge correctly relied on the decision in "Anshu and
others v. State of Haryana and others" 2018 (2) SCT 66, whereby it was
held that in the eventuality of smudging, damaging or scratching of OMR
sheets the candidature was liable to be rejected. The said decision was
upheld in Letter Patent Appeal No.92 of 2017 by an order of Co-ordinate
Bench dated January 20, 2017 and further upheld in Special Leave to
Appeal (Civil) No.8430 of 2017 on March 27, 2017. The order of Hon'ble
Single Judge is a well reasoned one whereby the decision of the
Commission to take into consideration the larger public interest in order to
maintain sanctity of the examination for preventing cheating, tampering,
manipulation or malpractice down the line has been appreciated. Therefore,
this Court finds that the impugned order of the Hon'ble Single Judge dated
August 22, 2023 and the impugned decision of the Commission to cancel
the candidature of 201 incumbents do not merit any interference.
Accordingly, the present letters patent appeal is dismissed. Connected
applications, if any, are also hereby disposed of.
(G. S. SANDHAWALIA) (LAPITA BANERJI)
ACTING CHIEF JUSTICE JUDGE
MAY 09, 2024
Shalini
Whether speaking/reasoned : Yes
Whether reportable : Yes
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