Union Of India vs Jagdish Chandra Jat
2021 Latest Caselaw 12974 Raj

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR D.B. Civil Writ Petition No. 12323/2020

1. Union Of India, Through The Secretary Ministry Of Communication, Department Of Posts, Dak Bhawan, New Delhi-110001

2. The Director (DE), Ministry Of Communication, Department Of Posts, Dak Bhawan, New Delhi- 110001

3. The Director Of Postal Services, Office Of The Chief Post Master General, Rajasthan Circle, Jaipur - 302001

----Petitioners Versus Jagdish Chandra Jat S/o Shri Shambhu Lal Jat, Aged About 30 Years, R/o VPO Jawasiya, Via Sadas, District Chittorgarh Presently Working on the Post of Postal Assistant At Head Post Office, Bhilwara, Rajasthan.

                                                                               ----Respondent


         For Petitioner(s)           :     Mr. B.P.Bohra.
         For Respondent(s)           :     Mr. S.K.Malik.


                     HON'BLE MR. JUSTICE SANGEET LODHA
                        HON'BLE MR. JUSTICE ARUN BHANSALI
                                                 Order

        (PER HON'BLE ARUN BHANSALI, J.)

        19/08/2021
REPORTABLE

This writ petition is directed against the order dated

24/9/2020 passed by the Central Administrative Tribunal, Jodhpur

Bench, Jodhpur ('Tribunal'), whereby, the original application filed

by the respondent - applicant has been accepted and order dated

24/6/2020 has been quashed and petitioners herein have been

directed to evaluate the OMR answer sheets of the applicant for

the post of Inspector of Posts and in case he is found to have

secured cut off marks or more marks than the persons

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appointed/promoted, he shall also be given appointment/

promotion on the said post with all consequential benefits.

The original application was filed by the respondent -

applicant inter alia with the submissions that the petitioners-

respondents issued notification dated 7/10/2019 for conducting

the Limited Departmental Competitive Examination for promotion

to the cadre of Inspector of Posts for the departmental quota for

the years 2016-2017, 2017-2018 and 2018. As the applicant was

possessing the requisite qualification, he applied for the same.

Admit card and instructions for examinations to be held on 16/17-

11-2019 were issued to the applicant and he participated in the

process of examination.

In the OMR answer sheet of paper second, the respondent

mentioned his Roll No. 18010030 in the space provided under

column 8 correctly, however, by mistake he darkened wrong

bubble/circle in the column of Roll Number in the OMR sheet

(circle '9' instead of circle '0') on 16/11/2019. The OMR answer

sheets were duly signed by the examination supervisor and

invigilator.

It was indicated that the respondent - applicant, after

realizing his mistake in relation to paper second held on

16/11/2019 regarding wrong darkening of the circle in the OMR

answer sheet, he filed representation on 21/1/2020 through

proper channel for making necessary correction in the OMR

answer sheet. It was indicated that without permitting due

correction in the OMR answer sheet of paper second, the result

was declared on 24/6/2020 and without making any evaluation of

respondent's answer sheet, his case was rejected with the remark

'Error' in the OMR sheet. The respondent made representation

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indicating that if his OMR answer sheet was checked, he would

have secured higher marks than the cut off and, therefore, his

OMR answer sheet be evaluated. As no response was received, the

O.A. was filed.

The petitioners herein filed reply to the interim prayer

indicating that the respondent has admitted his mistake and as

such, the OMR answer sheet has been rightly rejected.

The Tribunal, after hearing the parties, came to the

conclusion that assessing the merit of a candidate should be the

prime responsibility of the department and same should not be

hindered by the technicalities required for filling up the OMR

sheet. Relying on the judgment of principal bench of CAT, which in

turn had relied on judgments of Delhi High Court and this Court, it

was held that minor omission should not come in the way of

evaluation of OMR sheets of the candidates and consequently

passed orders as noticed hereinbefore.

Feeling aggrieved, the petitioners have filed the present writ

petition.

It is submitted by learned counsel for the petitioners that the

Tribunal was not justified in accepting the O.A. despite admitted

mistake committed by the respondent. It was emphasized that the

instructions issued by the examination authorities to the

candidates, which were indicated on the first page of the question

booklet clearly stipulated that the candidate must write his roll

number, question booklet series and other particulars in the space

provided in the OMR answer sheet, failing which his OMR answer

sheet will not be evaluated. Further, caution was indicated that

care should be taken in filling up the roll number, examination

paper number, question booklet serial number and that complete

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filling up will be the sole responsibility of the applicant and as such

the same has resulted in passing of the order impugned.

It was further submitted that terming the error as minor and

technical without referring to the instructions has resulted in

passing of the impugned order, which cannot be sustained.

Learned counsel for the petitioners made vehement

submissions that the instructions are meant to ensure fairness in

the examination and evaluation of answer sheets and that no

attempt should be made to identify the candidate by any means,

which is in larger public interest and in case correction of the

present nature is permitted, the same will disclose the identity of

the candidate to whom the said answer sheet belongs, which

would defeat the very purpose and, therefore, for the sake of

maintaining purity of the examination process the order impugned

deserves to be set aside. It was prayed that the order impugned

be quashed and set aside.

Reliance was placed on the judgment of Hon'ble Supreme

Court in State of Tamil Nadu & Ors. Vs. G. Hemalathaa & Anr. :

Civil Appeal No. 6669/2019 decided on 28/8/2019 and Jai Karan

Singh & Ors. vs. State of U.P. : Special Appeal No. 90/2018

decided on 25/4/2018 decided by Allahabad High Court, Mishra

Somesh Kumar Shiv Kumar vs. State of Jharkhand : 2017 SCC

Online Jhar 2902, Ashok Kumar vs. Union of India : S.B.Civil Writ

Petition No. 1188/2012 decided on 13/2/2017 by Jaipur Bench.

Learned counsel for the respondent made vehement

submissions that the order passed by the Tribunal is just and

proper and as such the same does not require any interference by

this Court.

(5 of 14) [CW-12323/2020]

It was submitted that it was a case of human error, wherein,

the respondent instead of darkening bubble pertaining to '0'digit,

darkened the bubble pertaining to '9' digit for which he cannot be

punished to this extent.

Further submissions were made that the OMR answer sheet

when submitted after the examination, was duly signed by the

invigilator and, therefore, it was his duty to ensure that the roll

number etc. were duly filled up and the said invigilator having

failed to do the needful, the respondent cannot be held

responsible for the same.

Submissions were made that the mistake indeed was minor

and technical, which has not affected the answer sheet, as such

by permitting correction it cannot be claimed that the same would

compromise the fairness in the examination process. The

respondent had applied for making correction well in time i.e. well

before the result was declared and as such denial by the

respondent authorities to do the needful cannot be sustained. It

was prayed that the writ petition be dismissed.

Reliance was placed on the judgment in Anil Kumar vs. State

of Rajsathan : S.B.Civil Writ Petition No. 657/2012 decided on

2/1/2013, Datar Singh vs. State of Rajasthan : S.B.Civil Writ

Petition No. 9170/2012 decided on 11/9/2012, Rohit Kumar vs.

Union of India : CWP No. 13730/2012 decided on 27/7/2012 by

Punjab & Haryana High Court, Dr. Poonam Songara vs. State of

M.P. : Writ Petition No. 78/2016 decided on 2/2/2016 by Madhya

Pradesh High Court and Sneh Sharma vs. Union of India & Anr. :

WP(C) 8131/2019 decided on 29/7/2019 by Delhi High Court.

(6 of 14) [CW-12323/2020]

We have considered the submissions made by learned

counsel for the parties and have perused the material available on

record.

The facts are not in dispute, wherein, the respondent has

admittedly committed mistake in darkening the bubble on the

OMR answer sheet in relation to his roll number, which resulted in

his answer sheet not getting checked with the indication 'error'.

The instructions as relied on by the learned counsel for the

petitioners on the question booklet, reads as under:

"4. An OMR answer sheet will be supplied to you separately by the Invigilator to mark the answers. You must follow the instructions given on the OMR. You must write your Name, Roll No., Question Booklet Series and other particulars in the space provided on the OMR answer sheet, failing which your OMR answer sheet will not be evaluated."

Further, relevant instructions for marking answers reads as

under:

"2. The Applicant should fill in the information in columns 1 to 9 (except column 2), in the boxes and darken the corresponding circles wherever required correctly.

3. Care should be taken to fill in Roll Number, Exam Paper No., Question Booklet Serial No., Series of Question Booklet etc. Correct and complete filling will be the sole responsibility of the Applicant."

The relevant instruction on the admit card reads as under:

"12. Please read the instructions carefully on Question Booklet & OMR Answer Sheet. The candidate should fill up all the particulars on the OMR Answer Sheet legible before starting to answer the questions."

From the above instructions, it is more than clear that the

candidates were repeatedly forewarned about taking care while

filling up the OMR answer sheet and indicating their particulars.

The reasons are not far to understand inasmuch as the OMR

answer sheets are electronically checked for the purpose of

ensuring minimum human intervention so as to ensure secrecy

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and credibility of the entire examination process. When the OMR

answer sheets are read electronically, any mistake committed by

the candidate would be detected and its treatment is electronically

fed i.e. in case of any discrepancy in the particulars of the

candidates indicated in the OMR answer sheet, same are not to be

evaluated.

The plea raised that the mistake committed by the

respondent was minor and technical, which on the face of it may

appear to be so, however, in case the correction of said mistake is

permitted, the same would surely compromise the secrecy of the

OMR answer sheet and the evaluation process inasmuch as on a

request being made to permit correction, the OMR answer sheet

would have to be taken out from the entire lot, the same would be

corrected, resulting in identification of the OMR answer sheet with

respect to a particular candidate and a possibility of further

tinkering with the OMR answer sheet cannot be ruled out.

In the present case, the respondent may be one candidate,

however, in a given examination there may be several such

candidates who may claim to have committed some mistake in

indicating the particulars and if it is held as a matter of principle

that such mistakes in OMR sheets must be permitted to be

corrected, the same would lead to chaos inasmuch as all such

candidates then would be required to be permitted to make

corrections, exposing the entire lot of OMR answer sheets, which

consequence cannot be permitted.

The sanctity of the instructions issued for the conduct of

examination and consequence of their violation has been dealt

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with by Hon'ble Supreme Court in the case of G.Hemalathaa

(supra), wherein, it was inter alia laid down as under:

"7.We have given our anxious consideration to the submissions made by the learned Senior Counsel for the Respondent. The Instructions issued by the Commission are mandatory, having the force of law and they have to be strictly complied with. Strict adherence to the terms and conditions of the Instructions is of paramount importance. The High Court in exercise of powers under Article 226 the Constitution cannot modify/relax the Instructions issued by the Commission.

8. The High Court after summoning and perusing the answer sheet of the Respondent was convinced that there was infraction of the Instructions. However, the High Court granted the relief to the Respondent on a sympathetic consideration on humanitarian ground. The judgments cited by the learned Senior Counsel for the Respondent in in Taherakhatoon (D) By LRs vs. Salambin Mohammad and Chandra Singh and Others vs. State of Rajasthan and Another in support of her arguments that we should not entertain this appeal in the absence of any substantial questions of law are not applicable to the facts of this case.

9. 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.

10. In her persuasive appeal, Ms. Mohana sought to persuade us to dismiss the appeal which would enable the Respondent to compete in the selection to the post of Civil Judge. It is a well-known adage that, hard cases make bad law. In Umesh Chandra Shukla v. Union of India, Venkataramiah, J., held that:

"13.... exercise of such power of moderation is likely to create a feeling of distrust in the process of selection to public appointments which is intended to be fair and impartial. It may also result in the violation of the principle of equality and may lead to arbitrariness. The cases pointed out by the High Court are no doubt hard cases, but hard cases cannot be allowed to make bad law. In the circumstances, we lean in favour of a strict construction of the Rules and hold that the High Court had no such power under the Rules."

11. Roberts, CJ. in Caperton v. A.T. Massey held that:

"Extreme cases often test the bounds of established legal principles. There is a cost to

(9 of 14) [CW-12323/2020]

yielding to the desire to correct the extreme case, rather than adhering to the legal principle. That cost has been demonstrated so often that it is captured in a legal aphorism: "Hard cases make bad law."

12. 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.

13. In view of the aforementioned, the judgment of the High Court is set aside and the appeal is allowed."

The Hon'ble Supreme Court laid down that the instructions

issued are mandatory and have to be strictly complied with, as

strict adherence to the terms and conditions of the instructions is

of paramount importance. The relief granted by the High Court

contrary to the instructions was not affirmed indicating that the

directions were in the teeth of the instructions, which were binding

on the candidates taking the examination. Reference was also

made to the well known adage that 'hard cases make bad law'

and that any order in favour of the candidate, who has violated

the mandatory instructions would be laying down bad law. The

Court further refused to exercise its powers under Article 142 of

the Constitution of India.

The above emphasis laid by the Hon'ble Supreme Court for

strict adherence to the instructions clearly applies to the present

case as well.

The Division Bench of this Court in Jitendra Sharma & Anr.

Vs. State of Rajasthan & Ors. : D.B.Civil Special Appeal (W) No.

73/2021 decided on 2/2/2021, wherein, the candidates failed to

fill in requisite column for the question booklet set 'A' or 'B' and,

(10 of 14) [CW-12323/2020]

therefore, their answer sheets were not evaluated, laid down as

under:

"3. Precisely, the case set out by the appellants before the learned Single Judge was that it was only a bonafide mistake on their part that the column meant for corresponding question booklet remained unfilled and therefore, on that account, the refusal of the respondents to evaluate the OMR answer sheets, is absolutely unjustified. It was contended that when the provision has been made for evaluating the answer sheets while deducting 5 marks in case of wrong mentioning of roll number, it was incumbent upon the respondents to evaluate the answer sheets while permitting the appellants to rectify the error crept in.

4. Learned counsel appearing for the appellants contended that the appellants were not aware about issuance of two sets of question booklet inasmuch as, they were issued set 'B' of question booklet. Reiterating the contention raised before the learned Single Judge, learned counsel submitted that in case of mentioning of wrong roll number, the mistake is permitted to be rectified by deducting 5 marks, there was no reason not to permit the appellants to rectify the mistake of non indication of the set of question booklet opted.

5. Indisputably, before attempting the question paper, the candidates were expected to read the instructions carefully. Unless question booklet 'A' or 'B' opted by the appellants is reflected in the OMR sheets, the answers given could not have been evaluated by OMR software application. The appellants, who were negligent in not reading the instructions properly and not filling the column meant for corresponding question booklet set, could not have been granted indulgence to fill up the column in the OMR sheets subsequently. If the OMR sheets are permitted to be opened and corrected in this manner, it may result in making fairness and transparency in the examination process questionable. For the parity of reasons, the OMR sheet cannot be permitted to be evaluated physically either.

6. For the aforementioned reasons, we are in agreement with the view taken by the learned Single Judge."

The Division Bench held that grant of indulgence to fill the

column in OMR sheets subsequently may result in making fairness

and transparency in the examination process questionable.

So far as the submission made regarding duty of the

invigilator to ensure that roll numbers were correctly filled in by

(11 of 14) [CW-12323/2020]

the candidates is concerned, the said submission also apparently

has no substance.

The Hon'ble Supreme Court in J&K Board of Professional

Entrance Examination & Ors. Vs. Pankaj Sharma & Anr. : Civil

Appeal No. 7158/2019 decided on 11/9/2019 inter alia observed

and held as under:

"The Respondent was a candidate for admission to the Post Graduate Degree course. The entrance examination was to be held in the OMR answer sheet format. The candidates were cautioned in the instructions to fill in the details properly, failing which their candidature was likely to be affected, claims for re-evaluation or otherwise would not be entertained. These were incorporated in the form of instructions in the General Information and Instructions of Information Brochure. The respondent wrongly filled in the OMR answer sheet as relating to 'A' series of question paper instead of 'B' series. Consequently, the answer sheet was checked on the basis of the key answers of question booklet series 'A', leading to award of 34 marks only.

We have heard learned counsel for the parties.

It is difficult for us to uphold the order of the High Court on the reasoning that though, the initial mistake was on the part of the respondent, the Invigilator at the Examination Hall and the Deputy Superintendent of the Examination Centre ought to have pointed out the error to the respondent so as to facilitate correction by him, on account of which lapse the respondent had suffered.

The OMR answer sheets are checked by scanning. No manual process was involved. The candidates had been cautioned in advance. Once the High Court arrived at the conclusion that the respondent was initially at fault, the impugned order automatically become unsustainable.

Consequently, the impugned order is set aside and the appeal is allowed. Pending applications shall stand disposed of."

(emphasis supplied)

In an almost identical case, the Division Bench of Allahabad

High Court in the case of Jai Karan Singh (supra), wherein, the

candidates had given incorrect information in the OMR answer

sheet related to either registration number, roll number or the

question booklet series, resulting in non-declaration of their

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results, came to the conclusion that the error committed by the

candidates cannot be said to be minor in nature. The registration

number, roll number determines the identity of the candidates and

the candidates should have read the instructions and correctly

filled the entries and as the entries were inaccurately filled, the

scanner was not able to process the result and consequently

dismissed the appeal, against which order the SLP was rejected by

the Hon'ble Supreme Court on 6/8/2018.

The learned Single Judge of this Court in the case of Ashok

Kumar (supra), in similar circumstances, dismissed the petition

inter alia observing as under:

"Counsel for the petitioner submitted that an innocent mistake ought not to have entailed the petitioner's exclusion by his being marked zero at the written examination only for the reason of his failure in filling his roll number on the OMR sheet.

I am afraid that there is no force in the contention. Lacs of students wrote the examination in issue. Absence of roll number entails the examination written by a candidate of no effect. It cannot be expected that an enquiry be made by the Examining Body as to whose OMR sheet it is when no roll number is written thereon. Such enquiries if burdened on the examination body would entail delay in the preparation of merit list and conclusion of the selection process. A petition under Article 226 of the Constitution of India is a remedy for the protection of the legal/fundamental right or for ensuring the discharging of a statutory duty owned by a statutory authority to a citizen. Reckless negligence and disregard of instructions in writing cannot on all occasions, be corrected by a writ court purporting to act in equity. Aside of the aforesaid, even on equity, over five years have lapsed since the examination of 2011 which is in issue and surely the selection process must have been completed."

The Division Bench of Gujarat High Court in State of Gujarat

vs. Jairajsinh Bhratsinh Chauhan : Letters Patent Appeal No.

114/2020 decided on 28/1/2020, in a case where the candidate

did not sign the OMR answer sheet in the preliminary examination,

following the judgments in the case of G. Hemalathaa (supra) and

(13 of 14) [CW-12323/2020]

J&K Board of Professional Entrance Examination (supra) set aside

the judgment of learned Single Judge and dismissed the writ

petition filed by such candidate.

Similarly, the Division Bench of Jammu & Kashmir High Court

in Arshid Ahmad Allayee vs. State of J&K & Ors. : LPASW No.

113/2018 decided on 27/11/2020 in a case where the candidates

had not indicated the question booklet number in the OMR answer

sheet, upheld the view taken by the Single Judge, who had

dismissed the writ petition.

The High Court of Telangana in Telangana State Public

Service Commission vs. Pothula Durga Bhavani & Ors. : WA

No.1369/2018 decided on 19/7/2021, wherein, the candidates

wrongly bubbled, double bubbled and not bubbled the personal

particulars such as hall ticket number, booklet serial number,

paper code and examination centre number, held that modifying

and/or relaxing the instructions issued by the examination

authority would result in violating the instructions issued to the

candidates participating in the public examination.

In view of the above law laid down by Hon'ble Supreme

Court in the case of G. Hemalathaa (supra) as followed by various

High Courts and judgment of the Division Bench of this Court in

the case of Jitendra Sharma (supra), the wrong indication of roll

number by darkening the wrong bubble by the respondent was

apparently fatal.

So far as the judgment cited by the learned counsel for the

respondent in the case of Datar Singh (supra) is concerned, the

same pertained to wrong entries made in the application forms by

the candidates, which were permitted to be corrected. The said

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judgment would have no application to a case of incorrect

indication in the OMR answer sheet.

The judgments, in the case of Anil Kumar (supra) of learned

Single Judge of this Court, in the case of Rohit Kumar (supra) of

Punjab & Haryana High Court, in the case of Sneh Sharma (supra)

of Delhi High Court and in the case of Dr. Poonam Songara (supra)

of Madhya Pradesh High Court, being contrary to the ratio of the

judgment in the case of G. Hemalathaa (supra) of Hon'ble

Supreme Court, do not advance the cause of the respondent.

In view of the above discussion, the order dated 24/9/2020

(Annex.2) passed by the Tribunal cannot be sustained and the

same is, therefore, set aside. The original application filed by the

respondent is dismissed.

The writ petition stands allowed, accordingly.

                                   (ARUN BHANSALI),J                                     (SANGEET LODHA),J


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