Punjab-Haryana High Court
Mohd Hannan vs Haryana Staff Selection Commission on 16 July, 2024
Neutral Citation No:=2024:PHHC:087975
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
CWP-24979-2018
Reserved on 10.07.2024
Pronounced on 16.07.2024
Mohd. Hannan ....Petitioner
Versus
Haryana Staff Selection Commission ....Respondent
CORAM: HON'BLE MR. JUSTICE NAMIT KUMAR Present: Mr. Nasir Jamal, Advocate for the petitioner.
Mr. Saurabh Mohunta, D.A.G., Haryana.
NAMIT KUMAR J.
1. The petitioner has filed the instant writ petition under Articles 226/227 of the Constitution of India seeking a writ of certiorari for quashing the action of the respondent in declaring the result of written test dated 10.08.2018 (Annexure P-9) and notice for interview dated 15.09.2018 (Annexure P-10), vide which the petitioner has not been declared successful and not called for interview mentioning therein that no eligible candidate is available in OSP-BC-B category. Further seeking a writ of mandamus, directing the respondent to consider the candidature of the petitioner under OSP-BC-B category for the post of Draftsman in pursuance to the Advertisement No.7/2015 dated 10.07.2015 as the petitioner is fully eligible under the said category and further issuance of directions to the respondent to provisionally interview the petitioner during the pendency of the present writ petition.
2. The case set up by the petitioner in the present writ petition is that the petitioner belongs to OSP-BC-B (Outstanding Sports Person-
Backward Class-Block 'B') category and is resident of Nuh. He passed Matriculation Examination vide Certificate dated 30.10.2007 and has been 1 of 13 ::: Downloaded on - 23-07-2024 05:26:35 ::: Neutral Citation No:=2024:PHHC:087975 CWP-24979-2018 issued Gradation Certificate dated 14.05.2012 by the Department of Sports and Youth Affairs, Haryana declaring D-I Grade as Sportsman in Kho-Kho. He has cleared 03 years diploma in Civil Engineering on 03.08.2012 from Haryana State Board of Technical Education, by securing 1st Division also. The respondent-Haryana Staff Selection Commission, Panchkula (hereinafter referred to as 'the Commission') issued Advertisement No.7/15 dated 10.07.2015, inviting applications for direct recruitment for 165 posts of Draftsman under category No.5 to be appointed in Irrigation and Water Resources Department, Haryana and one of the post of OSP-BC-B category was kept reserved. The petitioner being fully eligible for the above-mentioned post of Draftsman, applied under OSP-BC-B category and also attached all the relevant documents along with his application form which was registered at Sr. No.300363450. The petitioner appeared in the written test held on 12.11.2017 under Roll No.7154107885 and question booklet supplied to the petitioner was bearing No.1624073. The petitioner mentioned his roll number and booklet number and other details as required in OMR sheet and candidate's copy of the said OMR sheet was handed over to the petitioner by the Invigilator. The respondent-Commission declared the result on 10.08.2018 of the aforesaid written test and the petitioner was shocked to see that his roll number was not mentioned in the said result. Thereafter, the Commission issued notice dated 15.09.2018 to the candidates for appearing in the interview on 28.09.2018 and in the said notice roll numbers of the candidates called for interview were mentioned category-wise and in the relevant category, the petitioner's category i.e. 2 of 13 ::: Downloaded on - 23-07-2024 05:26:35 ::: Neutral Citation No:=2024:PHHC:087975 CWP-24979-2018 OSP-BC-B, it was mentioned that "no eligible candidates available in this category" and whereas the petitioner was fully eligible under the said category as the petitioner has attempted 38 accurate answers and as such each answer has two marks so the petitioner has secured 76 marks but the respondent-Commission is not considering his candidature, therefore, the petitioner submitted an application dated 15.09.2018 to the respondent-Commission on 16.09.2018 to enquire as to why his roll number was not considered under the OSP-BC-B category and when no action was taken by the respondent on the said application, the petitioner again submitted representation dated 17.09.2018, which was received vide Diary No.7628 dated 17.09.2018 and since no action has been taken on the same by the respondent-Commission, therefore, the instant petition has been filed.
3. Notice of motion in the present case was issued on 27.09.2018 and the petitioner was ordered to be provisionally interviewed and his result was ordered to be kept in a sealed cover.
4. The respondent-Commission filed reply dated 17.07.2020, wherein it has been stated as under :-
"xx xx xx xx xx
3. That the Haryana Staff Selection Commission had issued Advt. No.07/2015 which was published on 10.07.2015 for recruitment for 165 posts of Draftsman under Category No.05. The petitioner applied under OSP- BCB category and issued Roll No.7154107885 and the written test was conducted on 12.11.2017. It is further submitted that the petitioner has erased/smudged the answer to question No.76 on OMR sheet in violation of instructions and accordingly his OMR Sheet has not been evaluated as per terms and conditions of the Admit card, OMR Sheet, Question Paper mentioned below, rather his candidature has been rejected. The copy of OMR Sheet is 3 of 13 ::: Downloaded on - 23-07-2024 05:26:35 ::: Neutral Citation No:=2024:PHHC:087975 CWP-24979-2018 annexed as Annexure R-1/1.
4. That it is submitted that the above said writ petition came up for hearing before the High Court on 27.09.2018 and the Hon'ble Court was pleased to pass the following orders:-
"The petitioner is participating for the post of Draftsman under OSP BCB category pursuant to the advertisement (Annexure P-6) and cleared the written examination. The case of the petitioner is that he has not been called for interview vide notice (Annexure P-10). However, when the result was displayed (Annexure P-9), the roll no. of the petitioner was not there and he presumed that he did not qualify the written examination. While calling the candidates for interview vide notice (Annexure P-10), it was mentioned that no eligible candidate was available under the OSP BCB category. The petitioner has now placed on record his OMR sheet (Annexure P-8) and as per the answer key uploaded, he secured 76 marks out of 200 marks.
Notice of motion for 06.05.2019.
In the meantime, the petitioner shall be provisionally interviewed and his result be kept in a sealed cover.
A copy of this order be given dasti under the signature of Bench Secretary."
In compliance of the above said order dated 27.09.2018, the scrutiny of document and provisional interview of the petitioner has been done on 28.09.2018 and his result is kept in sealed cover which will be produced before the Hon'ble Court as and when the Hon'ble Court will direct to do so. The copy of interview attendance Sheet dated is annexed Annexure R-1/2. The final result has been declared on 08.10.2018 (Annexure R 1/3). It is relevant to mention here that it has been specifically mentioned in the final result dated 08.10.2018 at in the Note that:-
"Note. The result of Roll Nos. 7154103628, 7154107885, 7154108782, 7154109698 have been kept in sealed cover in compliance of Hon'ble High Court order passed in CWP No. 24851/2018, 24979/2018, 24548/2018, 24685/2018."
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5. That it is relevant to mention here that before conducting the test, a notice was issued for downloading the Admit Card. The candidates are required to download their admit cards before the examination and then he/she can appear for the written examination. It is always a challenge to conduct the examination of such a large number of candidates in a fair and transparent manner and without involving human factor and this could be done only by adopting the computerized fully automated latest technology for holding the examination. The petitioner had downloaded the Admit Card Annexure R-1/4 and similarly other candidates have also downloaded their Admit Cards. The instruction No.6 of important instructions for the candidates printed on the admit card is as follows:-
"6. Candidates are warned not to fold, tear, destroy or make any stray marks on the OMR Answer Sheet. Use of Eraser, Nail, Blade, White Fluid/Whitener etc. to smudge, scratch or damage in any manner the OMR sheet during Examination is strictly prohibited. Candidature/OMR sheet of candidates using Eraser, Blade, Nail or White Fluids/Whitener to smudge, scratch or damage in any manner the answer sheets shall be cancelled". Further, this admit card is required to be signed at three places i.e. (i) under the photograph (ii) in between i.e. above the important instructions along with the Invigilator's signature under the note which reads as follows;-
"Note: - I have read the instructions given below and undertake to abide by the same."
At the end also candidate is supposed to sign after the note and in the presence of Invigilator at the time of examination and the note reads as under:-
"Note: - I have read the instructions given above and undertake to abide by the same."
The admit card is downloaded by the candidate prior to the examination and he has sufficient time to go through all the instructions carefully.
In the examination hall the candidates are given question paper with printed instructions on front side and reverse and instructions on OMR sheet in the transparent envelope through which the candidate can read the 5 of 13 ::: Downloaded on - 23-07-2024 05:26:35 ::: Neutral Citation No:=2024:PHHC:087975 CWP-24979-2018 instructions printed on the question paper on front side and last page (reverse side). It is mentioned on the first page on the front side which is as under:-
"KINDLY READ THE INSTRUCTIONS BEFORE ATTEMPTING THIS QUESTION PAPER. IMPORTANT INSTRUCTIONS FOR THE CANDIDATES"
The Invigilators are also instructed to announce in the examination hall asking the candidates to read the instructions printed on the question paper. The question paper in sealed envelope is given to the candidate 10 to 15 minutes before the start of examination. Therefore, the candidate has sufficient time to go through the instructions printed on the question paper. In these instructions, instruction No.8 & 9 reads as follow:-
"8. Candidates are warned not to fold or make any stray marks on the OMR Answer Sheet. Use of Eraser, Nail, Blade, White Fluid/Whitener etc, to smudge, scratch or damage in any manner on the OMR sheet during Examination is strictly prohibited. Candidature/OMR Sheet of candidates using Eraser, Blade, Nail or White Fluids/Whitener to smudge, scratch or damage in any manner the Answer Sheet shall be cancelled.
"9. Candidates are warned not to carry handkerchief, any mobile phone, any type of watch, belt, wear ornaments like ring, chain, earring etc., electronic or communication device, Pen, Pencil, Eraser Sharpener and correcting Fluid in the examination centre. If any candidate is found possessing any such item, he/she will not be allowed to enter in the examination centre. Candidate found possessing mobile phone and any other aiding material as mentioned above in the examination room will be treated a serious violation and it will amount to cancellation of the candidature and debarring him/her from future examination."
The candidates are instructed to open the sealed envelope containing the question paper and OMR sheet approximately 5 minutes before the examination. The OMR sheet has instructions on its back and according to 6 of 13 ::: Downloaded on - 23-07-2024 05:26:35 ::: Neutral Citation No:=2024:PHHC:087975 CWP-24979-2018 condition No.7 of the same the relevant portion is re- produced as under:-
"Candidates have to answer questions from the multiple choice of answer A, B, C or D. Select the right answer of each question and darken the correct bubble on the OMR Answer Sheet. Once darkened changes are not permitted. Use of Eraser, Nail, Blade, While Fluid/Whitener etc. to smudge, scratch, damage in any manner on the OMR Answer Sheet during Examination is strictly prohibited & it's use any where shall lead to cancellation & such OMR Answer Sheet shall not be evaluated."
Further, it is most important to mention that on the OMR Sheet the candidate is required to give undertaking under his signature as under:
1. "I, ___________, hereby undertake that the information provided by me for my eligibility for examination is true to the best of my knowledge. In case of any information found to be incorrect/incomplete at any stage, I am liable for disqualification for Examination and legal action.
I have read all the instructions printed on the envelope and understood the same.
2. I do hereby declare that I have filled in my Name and Roll no. as it appears on the admit card, I fully understand and agree that in case I darken the wrong circles or fill incorrect Roll No. or use Whitener/Eraser/While Fluid etc. on OMR Answer Sheet my candidature will be liable to be rejected." Thus, on all the documents i.e. admit card, question paper and OMR sheet the conditions are mentioned unambiguously and a candidate like petitioner who is appearing for the post of Draftsmen is supposed to go through all the instructions and understand the same in true prospective. The Commission incorporated this condition to rule out any kind of human interference in the conduct and evaluation of the OMR sheets. This has been done to achieve transparency and to avoid any kind of manipulation at any stage by the candidate or by the staff of the Selection Commission or any other body.
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6. That the perusal of the OMR sheet of the petitioner shows that he has scratched/smudged his answer sheet against question No.76 and hence his OMR has not been evaluated by the answering-Respondent as per terms and conditions and undertaking mentioned in para 3 above. The Commission has evaluated the OMR sheets strictly as per the instructions printed on the admit card, question paper and the OMR sheets. The instruction No.8 & 9 of question paper are to be interpreted and construed in harmony keeping in view the objective to conduct the test fairly by the answering-respondent. Any deviation from the instructions shall mean favoring the defaulters and punishing the law abiders. In this examination alone, there are many candidates who have not followed these instructions and his OMR sheets have not been evaluated as per instructions printed on the admit card, question paper and OMR sheet. The petitioner had impliedly consented to the instructions mentioned in aforesaid annexures by appearing in written examination and underwent the selection process and as such at this stage he is estopped to raise this issue now. Moreover, the objective of these instructions is to get the evaluation done automatically through computerized mechanism without involving human factor such smudged OMR sheets are discarded and then not evaluated. If these discarded OMR sheets are to be evaluated then the evaluation agency personnel/other human agency shall be involved and there shall be chance of manipulation. To remove human factor at the instance of agency these clauses have been included in the interest of candidates and for holding the examination and its evaluation in fully transparent manner. Hence, no cause of action subsists to the petitioner in the present writ petition and is liable to be dismissed having no force and merit therein.
7. That the candidates were specifically instructed to adopt the manner in which answers were to be marked and similarly they were prohibited not to use fluid or scratch the OMR sheet but the petitioner has erased/smudged the answer on OMR sheet thereby violating the terms and conditions printed on the admit card, question paper and the OMR sheets.
8. That it is pertinent to mention here that on the similar issue, the Hon'ble High Court passed the order dated 18.12.2017 in CWP No.26745 of 2017 titled as 8 of 13 ::: Downloaded on - 23-07-2024 05:26:35 ::: Neutral Citation No:=2024:PHHC:087975 CWP-24979-2018 Ravinder Versus State of Haryana (Bunch Matter viz. CWP No.22826 of 2017-Sushil Kumar Versus State of Haryana & Ors., CWP No.23222 of 2017-Jony & Ors. Versus State of Haryana & Ors., CWP No.6453 of 2017-Sheesh Pal Sandhyan Versus State of Haryana & Ors., CWP No.9031 of 2017-Vishwajeet Versus State of Haryana & Ors., CWP No.10523 of 2017-Dilbag Singh Versus Haryana Staff Selection Commission, CWP No.27773 of 2017-Ramesh Kumar Versus State of Haryana & Ors., CWP No.27824 of 2017-Promila Versus State of Haryana & Ors., CWP No.28401 of 2017-Manisha Lohan & Ors. Versus State of Haryana & Ors., CWP No.28409 of 2017-Neelam Devi & Anr., Versus State of Haryana & Ors., CWP No.26917 of 2017-Ravinder Versus Haryana Staff Selection Commission & Anr.) The operative part of the order dated 18.12.2017 (Annexure R-1/5) is reproduced as under:-
"Whereas the rationale of that argument is not lost on the Court, however, the fact is that the answer sheets in which there is an erasure in roll numbers would be much fewer, when compared with those in which there is an erasure/alteration in the answers to the questions themselves. Therefore, if a direction were to be given to manually check those answer sheets too, obviously it would increase the burden on the Commission manifold. In any case, that issue having been decided by a Division Bench, as repeated many times in the orders passed in these petitions earlier, this Bench is obviously bound by that decision.
Consequently, as regards the issue of considering the candidature of the petitioners where answers have been either erased or altered, these petitions are dismissed.
As regards the issue of wherever there are erasures in the roll numbers in any of these cases, the petitioners would be at liberty to file a representation to the Secretary of the Commission, who would thereafter take a decision at the earliest, and as very fairly stated by the learned Advocate General, the decision would be taken prior to the announcement of the results in question. However, for future selection processes, the Commission is directed to go into the opinion given 9 of 13 ::: Downloaded on - 23-07-2024 05:26:35 ::: Neutral Citation No:=2024:PHHC:087975 CWP-24979-2018 by the expert produced by it before this Court, and see as to why simply the answers that have been altered in the OMR sheet, or have been erased or where double answers have been given etc., should not be the questions which should be ignored, instead of rejecting the entire answer sheet itself. The said issue would be looked at by the Commission even in respect of those selection processes as have been initiated, but where the written examination is still to be held."
It is further submitted that LPA No.353 of 2018 was challenged by the petitioners in CWP No.23222 of 2017- Jony & Ors. Versus State of Haryana & Ors. (Bunch matter- main CWP No.26745 of 2017) as reproduced above. The Hon'ble High Court dismissed theLPA No.353 of 2018 titled as Jony & Ors. Versus State of Haryana & Ors. vide order dated 08.03.2018 which is reproduced as under:-
"Order passed by the learned Single Judge dated 18.12.2017 has been impugned by filing the present intra-court appeal. Prayer of the appellant is that once the OMR sheets are being re-checked with reference to cutting on the roll numbers, there should not be any objection for consideration of even the answers, where some cutting is there. If re-consideration of the answer-sheets with reference to the alteration/ cutting in the answer keys is permitted, that may result in tampering of record and consequently the result, which is not the case where only error or cutting in the roll number is there. Hence, there is no error in the order passed by the learned Single Judge dismissing the writ petition."
Further, the judgment dated 08.03.2018 passed in LPA No.353 of 2018 was also challenged before the Hon'ble Supreme Court in SLP No.28595 of 2018 which was also dismissed in favour of Commission vide order dated 25.10.2018. The copy of orders are annexed as Annexure R-1/6 & R-1/7.
9. That besides above, the Hon'ble High Court dismissed the CWP No.22918 of 2016 titled as Anshu & Ors. Versus State of Haryana & Ors. vide judgment dated 21.12.2016 (Annexure R-1/8). Further, the Division Bench 10 of 13 ::: Downloaded on - 23-07-2024 05:26:35 ::: Neutral Citation No:=2024:PHHC:087975 CWP-24979-2018 of this Court has dismissed the appeal bearing LPA No.92 of 2017 titled as Anshu and Ors. Vs. State of Haryana and another on 20.01.2017 (Annexure R-1/9) while dealing with the identical controversy and held as under:
"It is evident that the specific guidelines were provided to the candidates to adopt the manner in which answers were to be marked and similarly they were cautioned not to use fluid or scratch the OMR sheet, but in complete violation of the instructions the answer books were found to be smudged with double marking and even erasing fluid was used as also tampering with the nail/blade. Having done so the appellants cannot claim any prejudice if strict action has been taken by cancellation of their OMR sheets altogether. Such guidelines are issued as OMR sheets have to be evaluated by a computer which may not respond appropriately in view of abrasions and tampering. The learned Single Judge has rightly discarded the plea of the appellants in the impugned order and we, finding no infirmity therein, would also decline interference, particularly when it is expected of the candidates to be conscious of the guidelines and instructions issued by the examiner in the selection process which has to be thoroughly respected"
It is pertinent to mention against the judgment dated 20.01.2017 passed in LPA No.92 of 2017, the SLP No.8430 of 2017 was filed before the Hon'ble Supreme Court of India and the same was also dismissed vide judgment dated 27.03.2017. The copy of order is annexed as Annexure R- 1/10. It is also relevant to mention here that on the similar issue even the SLP bearing No.12169 of 2017 filed against the said order has also been dismissed by Hon'ble Supreme Court upholding the order of this Court.
xx xx xx xx xx"
5. However, the petitioner has not filed any replication to the written statement filed by the respondent.
6. Learned counsel for the petitioner submits that the petitioner has wrongly not been considered under OSP-BC-B category as from the answer key issued by the respondent-Commission, the 11 of 13 ::: Downloaded on - 23-07-2024 05:26:35 ::: Neutral Citation No:=2024:PHHC:087975 CWP-24979-2018 petitioner checked his question paper and found that he has attempted 38 right answers and as such for every right answer, he was to get two marks, therefore, the petitioner has secured 76 marks out of 200 marks and, therefore, his candidature has wrongly been rejected.
7. Per contra, learned State counsel submits that the petitioner has scratched/smudged his answer sheet against question No.76, therefore, his OMR sheet has not been evaluated by the respondent as per the terms and conditions and the undertaking. The Commission has evaluated the OMR sheet strictly according to instructions printed on the admit card/question paper and OMR sheet. He further submits that in this examination alone, there are many other candidates who have not followed these instructions and their OMR sheets have also not been evaluated as per instructions printed in the admit card, question paper and OMR sheet and since the petitioner had impliedly consented to the instructions by appearing in the written examination and underwent the selection process, therefore, at this stage, he is estopped to raise the above-said issue. In support of his contentions, he has placed reliance upon the judgment passed by this Court in CWP No.22918 of 2016 titled as 'Anshu and others Vs. State of Haryana and another' decided on 21.12.2016 which has been upheld by a Division Bench of this Court in LPA No.92 of 2017 titled as 'Anshu and others Vs. State of Haryana and others' decided on 20.01.2017. Against the order of LPA Bench, even Special Leave to Appeal (C) No.8430 of 2017 titled as 'Anshu Vs. State of Haryana and others' preferred by the petitioner therein was also dismissed vide order dated 27.03.2017.
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8. I have heard learned counsel for the parties and perused the relevant record with their able assistance.
9. As per the stand taken by the respondent-Commission, the petitioner has scratched/smudged his OMR sheet against question No.76. Original OMR sheet, produced by learned State counsel has been perused and it is clear that against question No.76, the petitioner has attempted two answers by erasing the first answer which is not permissible as per Clause 8 & 9 of the instructions which has already been reproduced above in the respondent's reply. Law is very clear on this issue. This Court in CWP No.22918 of 2016 titled as 'Anshu and others Vs. State of Haryana and another' decided on 21.12.2016 has already examined this issue and similar claim raised by the petitioners therein have been rejected upto the Hon'ble Supreme Court. Therefore, the present case is squarely covered by the judgment in CWP No.22918 of 2016 which has already been upheld by the Division Bench of this Court in LPA No.92 of 2017 titled as 'Anshu and others Vs. State of Haryana and others' decided on 20.01.2017 and by Hon'ble Supreme Court in Special Leave to Appeal (C) No.8430 of 2017 titled as 'Anshu Vs. State of Haryana and others'.
10. In view of the above, there is no merit in the present writ petition and the same is hereby dismissed with no order as to costs.
(NAMIT KUMAR)
16.07.2024 JUDGE
kothiyal
Whether speaking/reasoned: Yes/No
Whether reportable: Yes/No
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