Allahabad High Court
Lalloo Singh vs State Of Up And Another on 6 September, 2024
Author: Mahesh Chandra Tripathi
Bench: Mahesh Chandra Tripathi
HIGH COURT OF JUDICATURE AT ALLAHABAD Neutral Citation No. - 2024:AHC:145312-DB Court No. - 29 Case :- SPECIAL APPEAL DEFECTIVE No. - 161 of 2024 Appellant :- Lalloo Singh Respondent :- State of U.P. and Another Counsel for Appellant :- Shailendra Singh Counsel for Respondent :- A.K.S.Parihar,C.S.C. Hon'ble Mahesh Chandra Tripathi,J.
Hon'ble Prashant Kumar,J.
1. Heard Sri Shailendra Singh, learned counsel for the appellant-petitioner, Sri Fuzail Ahmad Ansari, learned Standing Counsel for the State-respondent No.1 and Sri A.K.S. Parihar, learned counsel for the respondent No.2 - Uttar Pradesh Secondary Education Services Selection Board.
Order on Delay Condonation Application
2. For the reasons stated in the affidavit filed in support of the delay condonation application, the delay is condoned and application is allowed, accordingly.
3. Present special appeal is treated to have been filed well within time.
Order on Special Appeal
4. This intra-court appeal is preferred against the impugned order dated 03.12.2022, passed by learned Single Judge in Writ-A No.6254 of 2022 (Lalloo Singh Vs. State of U.P. and another). The appellant prays that this Hon'ble Court allow the appeal, set aside the impugned order dated 03.12.2022, and direct Respondent No.2 to include the name of the appellant- petitioner in the merit list and select him for the post of Trained Graduate Teacher pursuant to the examination held in 2021. For ready reference, the impugned order dated 03.12.2022 is reproduced hereinbelow:
"Heard Sri B.K. Singh Raghuvanshi learned counsel for the petitioner, learned Standing Counsel for the State respondents and Sri A.K.S. Parihar learned counsel for the respondent Board.
Challenge has been raised to the order dated 26.3.2022 passed by the Secretary of the U.P. Secondary Education Services Selection Board, Prayagraj. Thereby the Board has rejected the objection filed by the petitioner seeking evaluation of his OMR Sheet for the Assistant Teacher (TGT) Examination 2021.
Upon the last hearing, prima facie observations were made in favour of the petitioner. Sri Parihar was required to obtain further instructions. Those instructions have been received by Sri Parihar, copy of that has been placed on record and marked as 'X'. Also, original OMR Sheet of the petitioner has been produced by Sri Parihar.
Having heard learned counsel for parties and having perused the record, in the first place, it cannot be denied, there is a mark partially over the circle/bubble bearing No. 2 for the purpose of subject choice. Though larger part of the mark is outside of that circle/bubble, at the same time it cannot be denied that it is over some part of that circle/bubble. Upon touch, it does appear that the said mark has been created by some kind of liquid or other substance. Upon touch the said mark is found to be embossed/raised over the paper sheet on which it has been made.
Written instructions relied upon by learned counsel for the Board refer to the instructions that were issued to the candidates. They clearly provided, marking will be made only at the designated places over the OMR Sheet and that no other or stray mark may be marked over the OMR Sheet. Violation of the instructions thus issued would invalidate the OMR Sheet is another instruction specifically issued by the Board and made known to all candidates before they set out to mark their responses on the OMR Sheet.
Then as to the procedure followed by the Board to collect and evaluate the OMR Sheet, it has been disclosed that the OMR Sheets are collected at the examination centres and packed by Assistant Superintendent, Centre Superintendent and Observer under Close Circuit TV set up. Those are then sealed and transported to the Board under the supervision of the DIOS and the Magistrate nominated by the District Magistrate of the concerned district. No interpolation is possible during such transportation as it takes place under police escort. The sealed OMR Sheets are stored in a strong room, by the Board. The scanning process is carried out by the Board through a duly appointed agency, again under Close Circuit TV set up.
While such procedure is stated to have been disclosed by the Board, there is no reason to doubt that the same was not followed. It is so because at this stage there are no pleadings made in the writ petition as may give rise to any reasonable doubt with the Court as to the procedure followed by the Board. Once the petitioner was setting out a challenge to the order dated 26.3.2022, it was for him to have made appropriate pleadings and raise such challenge.
In absence of challenge raised and in face of the observation made above where prima facie it appears to the Court that the mark giving rise to the dispute has been placed over the OMR Sheet and is not a mark that may have pre-existed, no reason may arise to the Court strong enough to allow the discretionary relief to be granted to the petitioner. Therefore, it has to be observed that the OMR Sheet that was issued to the petitioner was clean i.e. without any mark over the circle bearing No. 2 with respect to the subject history. Thereafter, there does appear a blue mark placed over the same. In absence of any pleadings or doubt as to the procedure followed by the Board in collecting, transporting and evaluating OMR Sheet, it has to be presumed that the author of the said mark was the petitioner. How and in what manner such mark came to be made is not a matter to be investigated by the Court. The request for forensic examination of the same is therefore, declined in absence of any cogent pleadings necessitating such examination. The presumption that exists in fairness of the procedure followed by the Board being unrebutted, the Court may not venture on a fishing and roving enquiry to determine who, how and at what time placed the disputed mark over the OMR Sheet of the petitioner.
In the context of the judicial review sought, no cogent reason exists to call for interference in such a case. In view of the above, I decline to exercise the discretionary jurisdiction to interfere in the matter.
Writ petition is accordingly dismissed.
Original OMR Sheet of the petitioner is returned to Sri A.K.S. Parihar."
5. Learned counsel for the appellant-petitioner submits that the respondent No.2 - Uttar Pradesh Secondary Education Services Selection Board (in short 'Board') issued Advertisement No.1/2021 for the recruitment of Trained Graduate Teachers, inviting online applications. The petitioner applied online under the OBC category for the Social Science subject (Boys Category). An admit card was issued for an examination scheduled for 08.08.2021 at Bhawans Mehta Mahavidyalay, Bharwari, Kaushambi, which the petitioner attended, with Roll No.0905010713 and Booklet Series-C (Code: TG-05). Respondent No.2 - Board, issued the answer key on 18.08.2021. It is claimed that the petitioner attempted all questions, achieving 44 correct answers in Economics Part-III and Civics Part-IV, each carrying 4 marks. According to the petitioner, his score was 348 marks on the initial answer sheet and 352 marks on the revised sheet issued by Respondent No.2 - Board. Subsequently, Respondent No.2 - Board issued a merit list for the Trained Graduate Teacher position, requiring 346.77420 marks for OBC candidates in the Social Science (Boy Category).
6. The appellant-petitioner, confident of selection, was dismayed when his name was not found in the result, aggrieved with which, Writ-A No.16039 of 2021 was preferred by the appellant-petitioner. The Writ Court, vide order dated 08.12.2021, directed the appellant-petitioner to file a detailed representation before Respondent No.2 - Board. The representation dated 15.12.2021 was submitted and acknowledged by Respondent No.2, but no decision was taken within the stipulated period of one month. However, the respondent No.2 - Board rejected the appellant-petitioner's representation on 26.03.2022, stating that the appellant-petitioner incorrectly filled the OMR sheet by selecting three subjects (History, Economics, and Civics) instead of the required two. When the petitioner contested this in court, Respondent No.2 - Board maintained that the petitioner had blackened answers in all three subjects, contradicting their previous admission that only Economics and Civics were selected. The photocopy of OMR sheet provided, showed no blackened mark on the subject History, indicating only two subjects (Economics and Civics) were opted for, which contradicted the respondent's assertions.
7. The appellant-petitioner claims that Respondent No.2, to conceal a mistake, has provided inconsistent reasons for invalidating the OMR sheet, which is untenable in law. Consequently, the appellant-petitioner preferred the aforesaid Writ-A No.6254 of 2022. The learned Single Judge, on 18.11.2022, noted that there was no clear mark to suggest that the petitioner selected the subject of History, and any mark referred to was faint and not created with any apparent intent or pressure. Nevertheless, on 03.12.2022, the learned Single Judge dismissed the petition, stating that the court would not engage in speculative inquiry to determine the origins of the disputed mark on the OMR sheet.
8. In this backdrop, learned counsel for the appellant-petitioner submits that the appellant - petitioner answered 44 questions correctly in both Economics Part-III and Civics Part-IV, resulting in a total score of 352 marks, exceeding the merit list cut off of 346.77420 marks. The Board's decision to reject the representation based on alleged discrepancies in subject selection is not legally sustainable, as there is no blackened spot for History on the OMR sheet. He submits that Respondent No.2 has failed to examine the OMR sheet accurately and is attempting to cover up their error.
9. He submits that as the order impugned dated 03.12.2022, dismissing the petition, was passed without thoroughly considering the facts, therefore, the same may be set aside and a direction may be issued commanding the Respondent No.2 to include appellant-petitioner's name in the merit list and select him for the Trained Graduate Teacher post to prevent irreparable loss.
10. Sri Fuzail Ahmad Ansari, leanred Standing Counsel for the State-respondent No.1 and Sri A.K.S. Parihar, learned counsel for the respondent No.2 jointly submit that in compliance with the order dated 08.12.2021, passed in Writ-A No.16039 of 2021, the petitioner's representation dated 15.12.2021 was decided after careful consideration of all relevant facts, and an order dated 26.03.2022, was issued in strict accordance with the law. They submit that the appellant - petitioner applied under the 'Other Backward Class' category for the post of TGT (Social Science) pursuant to the Advertisement No.1 of 2021, with the written examination scheduled for 08.08.2021. Specific instructions were provided for filling the OMR answer sheet, including avoiding stray marks and correctly filling in all sections. However, the petitioner mistakenly filled in three subjects, i.e. History, Economics, and Civics in Part-1 of the OMR sheet, instead of the required two subjects, contrary to the instructions. Consequently, the OMR sheet was found to be incomplete and incorrect, leading to its rejection through software.
11. They further submit that special instructions were provided for the examination, specifying the number of questions to be attempted in different sections. Due to the petitioner's failure to follow these instructions, the OMR sheet could not be evaluated electronically. The errors in filling out the OMR sheet were thoroughly explained in the order dated 26.03.2022. They submit that the respondent No.2 - Board conducts examinations for selecting teachers, all candidates are presumed to be adults capable of understanding and adhering to the instructions. Mistakes against these instructions cannot be considered minor. The decision by the Board was made in accordance with the law and should be affirmed.
12. In support of their submissions, they have placed reliance on the order dated 25.04.2018 passed in Special Appeal No.90 of 2018 (Jai Karan Singh and 52 others Vs. State of U.P. and others) and the order dated 06.09.2020 passed in Special Appeal No.247 of 2020 (Ramesh Chandra and 17 others Vs. State of U.P. and others) and state that various petitions on similar grounds have been dismissed by the Hon'ble Court, emphasizing the importance of adhering to instructions and upheld the rejection of incorrect OMR sheets. They further submit that the selection process for the posts of Lecturers in the TGT cadre was completed on 31.10.2021, as per order from the Hon'ble Apex Court passed in SLP No.8300 of 2016 (Sanjay Kumar Singh and others vs. State of U.P. and others and the order dated 28.06.2021 passed in Misc. Application No.818 of 2021 in which it was specified that no litigation shall be entertained against the final decision taken by the Board.
13. They lastly submit that since the final decision by the Board has been made, further litigation is barred, and the appeal lacks merit and should be dismissed by this Hon'ble Court. The final result of TGT (Social Science) was declared on 26.10.2021, in accordance with the Uttar Pradesh Secondary Education Service Selection Board Rules, 1998, and the selected candidates have been duly allotted institutions. In view of the facts presented, the present intra court appeal is without merit and is liable to be dismissed by this Hon'ble Court.
14. Heard rival submissions advanced by the learned counsels for the respective parties and perused the record.
15. In compliance with the order dated 28.02.2024, Sri Fuzail Ahmad Ansari, learned Standing Counsel presented the OMR (Optical Mark Recognition) sheet of the Assistant Teacher (TGT) Examination 2021 in a sealed cover. It was opened in the court in the presence of all counsels of the respective parties. The learned counsel for the appellant-petitioner also perused the OMR sheet and acknowledged discrepancies in its filling. We have also carefully examined the OMR sheet.
16. It reflects from the record that the candidates appearing in written examinations had been given following instructions to fill up the answer-sheet on point nos.6, 9 and 12 of the OMR Sheet:-
"6. Make marks only in the spaces provided. Please do not make any stray mark on this answer-sheet.
9. Answer sheet will be processed by electronic means. Invalidation of Answer Sheet due to incomplete/incorrect filling will be the sole responsibility of the candidate. 12. Please do not right or mark on this answer paper outside the demarcated areas. It may invalidate your Answer Sheet."
17. Apart from the above, the candidates appearing in pursuance of the aforesaid Advertisement No.1/2021 for the post TGT (Social Science) had been given Special Instructions to fill-up the answer-sheets. The Instructions contained in Special Instructions 4(a) and (b) are quoted below:-
"4.a). There are four questions, 1(1), 1(II), 1(III) and 1(IV) of question No.1 in Part - I. The candidate has to attempt any one question from this part and fill the answer.
4.b). There are four Sections, Section - I, Section - II, Section - III and Section - IV in Part - 2. The candidate has to attempt any two Sections from these four Sections and fill the answers."
18. The aforementioned instructions clearly state that candidates should not make any stray marks on the answer sheet, as it will be processed electronically and any incomplete or incorrect filling will be solely the candidate's responsibility. Additionally, candidates were instructed not to write or make marks outside the designated areas, as this could result in the invalidation of their answer sheets. Special Instruction 4(a) specifies that candidates must attempt only one of the four questions in Part I (1(1), 1(II), 1(III), or 1(IV)) and fill in the answer accordingly. Special Instruction 4(b) indicates that in Part II, candidates are required to attempt any two sections out of the four available (Sections I, II, III, and IV) and fill in the answers accordingly.
19. We find that the entire dispute is set up on the basis that a specific mark is noted over the History subject bubble on the OMR sheet. While only two subjects were to be marked, perusal of the OMR sheet indicates a discrepancy in the test booklet number. It is pressed before us that any error or overwriting would be detected by the software during scanning, as the evaluation is automated without manual intervention.
20. In Kanchal Bala and others vs. State of U.P. and others, 2018 (4) ADJ 264, the Court considered the similar matter relating to examination of Teachers' Eligibility Test-2017 and held as under:
"19. In the fast deteriorating standards of honesty and morality in the society the insistence by the respondents for adhering the instruction was to minimise any possibility or chance of any abuse. Larger public interest demands of observance of instruction rather than its breach. In today's competitive era maximum examinations and tests conducted are of multiple choice questions and hence OMR sheets are being checked by using the OMR (Optical Mark Reader) machines. The main aim of evaluation of OMR answer sheet having multiple choice questions is to reduce the time duration and increase the efficiency of evaluation. Normally, a person requires about 10-15 minutes for evaluating a single OMR answer sheet but the software in this regard needs just 5-7 minutes for evaluation of 50-60 OMR answer sheet, thus, decreasing human errors and saving the cost and time in the evaluation.
20. In Smt. Arti Verma (supra), a Division Bench of this Court has held as under:
"Each candidate necessarily must bear the consequences of his failure to fill up the application form correctly. No fault can, therefore, be found in rejecting the application for correction when the candidate himself has failed to make a proper disclosure or where, as in the present case, the application is submitted under a wrong category. Interference of the High Court under Article 226 of the Constitution is clearly not warranted in such matters as it creates grave uncertainty since the selection process cannot be finally completed. Moreover, in the present case, the appointment was of a contractual nature for a period of eleven months. Hence, considering the matter from any perspective, the learned Single Judge was not in error in dismissing the petition under Article 226 of the Constitution.
The Special Appeal is, accordingly, dismissed."
21. Another Division Bench, also of this Court in Ram Mahohar Yadav Vs. State of U.P. and others7 has held as under:
"If prospective teacher can not even correctly fill up the simple on line application form for his employment, it is obvious what he is going to teach if appointed. There are certain decisions cited on this issue. But none of them deal with this aspect whether under the discretionary jurisdiction of the Court under Article 226 of the Constitution of India such incompetent persons should be allowed to play with the future of the next generation.
Therefore, we are of the opinion that the petitioner/appellant should wait till he attains sufficient maturity and learns to be more careful in filling up the applications for jobs. The appeal is therefore, dismissed."
22. In case of G.V. Nutan Vs. The Bihar Combined Entrance Competitive Examination Board & Ors..8 a Division Bench of Patna High Court has held as under:-
"12. From careful reading of the important instructions, which have been re-produced above, it becomes clear that every candidate was required to correctly fill up, amongst others, his/her roll number in the OMR answer sheet making it clear that the answer sheet will be processed by electronic means and invalidation of answer sheet due to incorrect method of filling up, will be the sole responsibility of the candidate. In other words, the instructions aforementioned make it abundantly clear that in case a candidate does not follow the instructions and any entry, in the OMR answer sheet, is found to be incorrect/incomplete/untrue/fraudulent, the answer sheet shall be liable to be rejected.
13. In the backdrop of the above instructions, Mr. Vikas Kumar, learned Counsel, appearing on behalf of the respondent-Board, has contended that if at all any indulgence is granted to the appellant, it would lead to cascading affect inasmuch as it would destroy the entire selection or admission process inasmuch as there are other candidates, too, whose candidature stand rejected, because of errors committed in incorrectly filling up OMR answer sheet. It was also submitted, on behalf of the respondent-Board, that the last date fixed for final allotment of seats was 18.08.2014 and the appellant, on account of her own mistake, could not be brought to the zone of consideration.
14. Having considered the submissions, which had been made on behalf of the parties concerned, we find that the appellant's case cannot be considered and no order could be issued directing the respondent-Board to consider evaluation of the appellant's OMR answer sheet of Chemistry paper, which has been rejected by the respondent-Board, because of the fact that the roll number was incorrectly mentioned by the appellant in the OMR answer sheet, both in digits as well as in bubbles, more particularly, when candidates, who have committed similar mistakes, have already been disqualified.
15. Further-more, an OMR answer sheet is evaluated by computer and the computer would not evaluate an OMR answer sheet, which does not correctly mention the roll number of the candidate concerned.
16. In the circumstances indicated above, giving any indulgence to the appellant would have far reaching consequences inasmuch as those, who have not approached the Court, would be adversely affected and those, who have already been selected and taken admission, their selection and admission would have to be interfered with.
17. Coupled with the above, we are clearly of the view that the action taken by the respondent-Board was neither arbitrary nor illegal. In such circumstances, it is not legally permissible to interfere with the decision of the respondent-Board.
18. It is needless to mention that any order, if, now, issued in favour of the appellant, would involve displacement of candidates, who have already taken admission in different medical colleges, and would, thus, cause serious prejudice to the selected candidates, who do not stand impleaded in the writ petition or in the appeal.
19. We are, therefore, clearly of the view that any direction permitting evaluation of the appellant's OMR answer sheet of Chemistry paper, despite her having mentioned wrongly her roll number, would lead to making of fresh writ applications for the similar directions by those candidates, whose OMR answer sheets have been treated as invalid.
20. Because of what has been discussed and pointed out above, we find and hold that there is no illegality and/or arbitrariness in the action taken by the respondent-Board, when the appellant's case for evaluation was rejected, and the learned single Judge has duly considered all aspects of the matter and committed no error in upholding the decision of the respondent- Board.
21. For the reasons indicated above, this appeal is not admitted and shall stand accordingly dismissed."
(emphasis supplied)
23. The Court has proceeded to examine the record in question and found that clear instructions were given in the first page of question booklet directing the candidates to correctly fill up the OMR sheet and any error committed by the candidate cannot be corrected by the authority. The petitioners could not successfully mark the circle/bubble on the answer sheet showing correct registration number, roll number, booklet series or language-II attempted. Consequently, the result of the petitioners have been declared as invalid registration number/roll number. After the declaration of the result in question, they have proceeded to make a request that the correction is required. It is too late in the day to make such request by the petitioners, inasmuch as, OMR sheet is examined by the computer on the basis of columns that have been filled up by an incumbent and, in view of this, once final result has been declared and there is no provision to carry out any correction in the OMR sheet, then no relief can be accorded to the petitioners, especially keeping in view the dictum of Division Bench of this Court in Smt. Arti Verma Vs. State of U.P. & others and the judgment of learned Single Judge in Ritu Chauhan's case (supra), wherein once the Division Bench as well as learned Single Judge had already rejected the similar arguments as well as the claim set up by the candidates appeared in the TET-2013, 2016 and 2017, then there is no reason or occasion for this Court to take a different view in the matter.
24. The Court is also conscious that in the garb of minor discrepancy for rectifying such human error in the OMR sheet, the Court cannot give any liberty to the respondent to intervene in the matter at this stage, which would also have very serious consequence for the fairness of entire selection. Coupled with the above, I am clearly of the view that the action taken by the respondent is neither arbitrary nor illegal. In such circumstances, it is not legally permissible to interfere with the decision of the respondent.
25. For the aforesaid reasons and the law laid down, I do not find any merit in the aforesaid writ petitions and they are accordingly dismissed."
21. The Division Bench of this Court in Writ-C No.27636 of 2020 (Sambhav Pal vs. Union of India) has considered the similar matter related to National Eligibility-cum-Entrance Test (Under Graduate)-2020 and held as under:
"10. The NEET is one of the highest competitive examination, opening opportunities for students to get into the most prestigious medical colleges. The NEET (UG)-2020 examination was smoothly held amid strict precautions in view of the COVID-19 pandemic on 13.9.2020 on the given schedule in a secure and healthy atmosphere by following all the directions and advisories sincerely. Due to the COVID-19 pandemic, 85-90 percent of 15.97 lakh candidates appeared for NEET (UG)-2020 examination. The NTA released the answer keys of the NEET (UG)-2020 on 26.9.2020 and the aspirants were able to download the code-wise official NEET (UG)-2020 question paper with solutions from the NTA official website and challenge it as well. Admittedly, the petitioner did not challenge his answer key uploaded by the NTA on the official website. Thereafter, the NTA declared the final result on 16.10.2020 wherein, he had secured only 146 marks out of 720.
11. In the aforesaid facts and circumstances, we are of the opinion that the evaluation undertaken by the examining bodies should not be viewed with suspicion unless it is prima facie established that it was not fair or transparent. Such challenge may only be accepted unless it be well substantiated and found to rest on a strong pedestal which is likely to succeed. In the present matter, the detailed instruction, as enumerated above, clearly transpires to the Court that the entire pleading has been set up on vague and evasive grounds."
22. Considering the facts and circumstances of the case, it is evident that the discrepancies found in the appellant's OMR sheet, including erroneous marking and subject selection, were clear in violation of the examination's instructions. The appellant-petitioner failed to fill the OMR sheet correctly as required under the examination guidelines. The evaluation process is computerized, errors like overwriting or incomplete filling of bubbles would naturally result in rejection of OMR by the software. We find that there is no substantial evidence to suggest any procedural lapse or bias on the part of the respondents. Therefore, we do not find any infirmity in the impugned order. Accordingly, the special appeal sans merit and is hereby dismissed.
23. The OMR sheet of the Assistant Teacher (TGT) Examination 2021 is resealed in an envelope and returned to Sri Fuzail Ahmad Ansari, learned Standing Counsel.
Order Date :- 06.9.2024 NLY