Central Administrative Tribunal - Delhi
Kusum Gupta vs Dsssb on 6 December, 2024
1
Item 50 OA No.1832/2023
Central Administrative Tribunal
Principal Bench, New Delhi
OA No.1832/2023
Order Reserved on:28.11.2024
Order Pronounced on :06.12.2024
Hon'ble Ms. Harvinder Kaur Oberoi, Member (J)
Hon'ble Dr. Sumeet Jerath, Member (A)
Smt. Kusum Gupta
W/o Dr. Mukesh Gupta
R/o C-6/72-B, Keshav Puram
Delhi - 110 035. ...Applicant
(Filed By Advocate: Dr. Sudershan Kumar)
Argued By Advocate: Harish Kumar Karwal)
VERSUS
1. Chairman
Delhi Subordinate Services Selection Board
FC-18, Institutional Area
Karkardooma, Delhi - 110 092.
2. Govt. of NCT of Delhi
(Through Chief Secretary)
5th Level, A-Wing, Delhi Secretariat
I.P. Estate, New Delhi - 110 002.
3. Director of Education
Directorate of Education
Govt. of NCT of Delhi
Old Secretariat
New Delhi - 110 054. ...Respondents
(By Advocate : Ms. Purnima Maheshwari with
Ms. Deepika )
2
Item 50 OA No.1832/2023
ORDER
Hon'ble Mrs. Harvinder Kaur Oberoi, Member (J):
The present Original Application was filed by Advocate Dr Sudershan Kumar, however the same argued on 28.11.2024 by Advocate Harish Kumar Karwal along with the applicant in person. Orders in the OA were reserved on 28.11.2024. On 02.12.2024 vide diary no. Doc/10161/2024 a vakaltnama in favouring Advocate Harish Kumar Karwal was filed.
2. The present Original Application has been filed by the applicant seeking the following relief (s) :-
"A. To set aside and quash the impugned rejection order/notice No. 357 dated 28.02.2019 uploaded on 06.03.2019 to the extent of Serial No. 67, Booklet No. 10457371 in respect of the applicant.
B. To direct the respondents to include the name of the applicant herein in the list of selected candidates dated 28.02.2019 (i. e in the Notice No. 360 dated 28.02.2019) in UR Category of the post of Special Education Teacher Post Code- 87/17 alongwith all other selected Candidates.
C. To direct the respondents to grant offer of appointment letter to the Applicant to the post of Special Education Teacher forthwith. (Post Code- 87/17).
D. To direct the respondents to grant all the consequential benefits like seniority from the date of appointment of her junior/ from the date of first appointment in the UR Category for the post of Special Education Teacher, Post Code-87/17 and also grant pay and allowances from the date of appointment of juniors to the applicant herein.3 Item 50 OA No.1832/2023
E. To pass any other order as deemed fit and proper in the facts and circumstances of this case in the interest of justice.
F. To award cost."
3. The applicant, an aspirant for the post of Special Education Teacher, had applied in response to Advertisement No.4/17 published by the DSSSB on 20.12.2017 under Post Code 87/17. Initially, the number of vacancies advertised was 605 under various categories. Vide corrigendum dated 18.01.2018 the posts were increased from 605 to 1329.
The written examination for the post code 87/17 was held on 29.07.2018 and the applicant appeared in the said written examination with Roll No.2290003119. She was issued a booklet number 10457371.
On 14.09.2018, the applicant was declared shortlisted and was informed via SMS. She was required to fill out the e-dossier as scheduled. Within the stipulated time, the applicant has submitted her e-dossier. That final result was declared on 28.02.2019,along with a list of rejected candidates.
4. The applicant did not find her name in either of the lists. As such, she filed an RTI application seeking information concerning her candidature. In reply to her RTI, she was 4 Item 50 OA No.1832/2023 informed that the applicant‟s candidature has been "rejected for wrong bubbling" in the OMR sheet in the roll number column.
5. On 06.03.2019, another list of rejected candidates was uploaded by the DSSSB. In the said list, the applicant was declared as a rejected candidate.
6. She filed a representation against her rejection on 01.04.2019 but there was no response. She then approached the Tribunal by filing OA No.1890/19 which was dismissed as withdrawn with the liberty to file a fresh OA within 30 days. As such, the present OA has been filed.
7. Counsel for the applicant at the outset has raised doubts on her rejection, on the ground of wrong bubbling by stating that, as per respondent Board‟s policy and stand, a wrong bubbled OMR sheet shall be marked "zero". This due to the fact that the machine cannot read and mark the answers properly. Since OMR sheets are evaluated mechanically and not physically. He submits that SMS informing provisional selection was received by the applicant. This means that the OMR sheet was evaluated by the machine and on scoring marks/in merit the applicant was informed via SMS of provisional selection. 5 Item 50 OA No.1832/2023 Therefore rejection of the candidature of the applicant on grounds of wrong bubbling is false and incorrect.
8. On issuance of notices, respondents have filed their counter affidavit. The respondent-Directorate of Education has stated that they are the user department and their role starts only after the dossier has been received from the DSSSB. Since the applicant‟s case has been rejected by DSSSB, her dossier has not been received by them. As such, they are only a proforma party.
9. The main contesting party is the DSSSB. They have also filed their counter affidavit and have relied on their board policy. As per board policy, it was incumbent upon the applicant to check and understand instructions clearly.
10. In point no.5 of the question booklet, under the title "Important instructions" to candidates, it is explicitly stated that "OMR Answer Sheet is enclosed. In this Booklet, each candidate must complete the details of Roll number, Question booklet Number etc. on the Answer Sheet Number in the space provided in the Question Booklet, before actually beginning to answer the questions, failing which his/her Answer-Sheet will not be evaluated and he/she will be awarded „‟ZERO" mark. 6 Item 50 OA No.1832/2023
11. Besides, at point no. 14 of the question booklet, an illustration of the correct method of shading is also given. Further, at point no.16, it is stated that "A machine will read the coded information in the OMR Answer Sheet. In case, the information is incomplete/different from the information given in the application form, the candidature of such candidate will be treated as cancelled. In the OMR sheet, under the title instruction for candidates, at point no.2, illustration of the correct method of shading is given. At point no.3, it is further given that "The candidate must shade only one circle. If more than one circle is shaded, it will be treated as wrong answer."
12. Since the applicant failed to bubble the OMR sheet correctly, she has violated the instructions and therefore her candidature has been cancelled.
13. We have heard the learned counsel for the parties and have perused the records.
14. Since the issue pertains to wrong bubbling of the OMR sheet, vide order dated 14.11.2024, the OMR sheet was called for by this Tribunal.
7Item 50 OA No.1832/2023
15. The respondents have provided a copy of the OMR sheet in sealed cover. The same was perused by us and also taken on record. We note that the question booklet number has been mentioned therein as 10457371 and has been bubbled correctly also. However, the roll number i.e.2290003119 has not been correctly bubbled. The 3rd digit of roll no.i.e."9" has not been bubbled in the row provided it has been bubbled in the next row. The next row was meant for the fourth digit i.e. "0". In the meant for the for the fourth digit both the third and fourth digit have been bubbled. As such, there is a mistake in the bubbling of roll no on the OMR sheet. Respondents therefore argued that the wrong bubbling of her roll no on the OMR sheet means that the same cannot be evaluated as per board policy.
16. Counsel appearing on behalf of the applicant has argued that mere wrong bubbling of the OMR sheet would not mean that the substantive right of the litigant/candidate is defeated. He argued that may be Roll no has been wrongly bubbled, however the same is mentioned correctly on the OMR sheet in hand writing and the same did not prevent the respondents or the machine from evaluating. Since it was evaluated benefit of the marks scored be granted to the applicant.
8Item 50 OA No.1832/2023
17. Applicant has argued further that it is not a case that the OMR sheet and the candidate cannot be linked or identified. He relies on the decision of the Hon‟ble Supreme Court in M/S Ramnath Exports Pvt. Ltd. Vs. Vinita Mehta & Anr. in Civil Appeal No.4639/2022.He further relies on the judgments inUma Nath Pandey and Ors. Vs. State of U.P. and Anr., Criminal Appeal No.471/2009 and Sambhaji & Ors. Vs. Gangabai & Ors. (Civil Appeal No.6731/2008),which are on the point of principles of natural justice having been violated. Relying on these judgments, he states that procedural law should not originally be construed as mandatory. The procedure law is always sub- serviant to aid in justice. Therefore despite the wrong bubbling of roll number, the applicant should be considered as per the merit/score achieved by her.
18. Per contra, counsel appearing on behalf of the respondents argues that the OMR sheet is evaluated mechanically. In case information is not correctly bubbled then the same leads to incorrect reading. To avoid complications it is the Board‟s policy to evaluate such OMR sheets as zero marks. The board's policy is uniformly applied to each selection. It was by mistake that the OMR sheet was evaluated and SMS sent to the applicant , however on noticing that the roll number has not been bubbled 9 Item 50 OA No.1832/2023 correctly the same would not have been placed in the machine itself for evaluation.
19. Respondents have relied upon decision of the Apex Court in Union of India and ors Vs. Mahendra Singh, Civil Appeal no.4807/2022. Relevant paras 13 & 14 of the said judgment read as under:-
"13. The sole reasoning given by the Division Bench of, the High Court of time gap between the filling up of the application form and the examination, and hence inadvertent filling up of OMR sheet in Hindi by the writ petitioner is based on surmises and conjectures. Once the writ petitioner has filled the application form in English, having also signed in English, it cannot be said to be an inadvertent mistake when he has written the para in Hindi. Such writing in different language violates the instruction clearly mentioned in the advertisement.
14. The argument of Mr. Bhushan that use of different language is not followed by any consequence and, therefore, cannot be said to be mandatory is not tenable. The language chosen is relevant to ensure that the candidate who has filled up the application form alone appears in the written examination to maintain probity. The answer sheets have to be in the language chosen by the candidate in the application form. It is well settled that if a particular procedure in filling up the application form is prescribed. the application form should be filled up following that procedure alone. This was enunciated by Privy Council in the Nazir Ahmad v. King- Emperor, wherein it was held that "that where a power is given to do a certain thing in a certain way the thing must be done in that way or not at all. Other methods of performance are necessarily forbidden."10 Item 50 OA No.1832/2023
20. Main point of consideration in the present matter is with respect to the incorrect bubbling/ darkening of the OMR sheet which has resulted in the rejection of the candidature of the applicant. The OMR sheet is back to back printed sheet and there are instructions on the said sheet which are being reproduced herein for easy reference:-
"1. Use Blue/Black Ball Point Pen Only.
2. Mark your answer by shading the appropriate circle against each question. The circle should be shaded completely without leaving any space. The correct method of shading is given below.
Wrong Wrong Wrong Wrong
Method Method Method Method
0000 0000 0000 0000
The Candidate must mark his/her response after careful consideration, as it is not possible to change the response once it is marked.
3. The Candidate must shade only one circle. If more than one circle is shaded, it will be treated as wrong answer.
4. Use the space for rough work given at the begining of the Question Paper only and not on the Answer sheet.
5. Valuation of Answer Sheet will be done on the computer. Candidate should not make any stray marks on the Answer Sheet, tamper with or mutilate it. Otherwise it will not be evaluated.
6. The appropriate Circle should be shaded for Roll No., Question Booklet No. and Preference of Post Codes applied 11 Item 50 OA No.1832/2023 for etc. This should be done carefully because only the shaded circle are scanned.
7. The candidate needs to circle as "00" as the first 2 digits in the first 2 columns of the Roll number, if the roll number is a 8 digit number.
8. 0.25 marks will be deducted for each wrong answer."
21. From the instructions, on the OMR sheet and in the booklet and advertisement, it is clear that candidates have been warned repeatedly to be careful while bubbling the sheet. It would be pertinent to note the general instructions printed on the advertisement for the candidates. The relevant instructions are reproduced below:
"(ii) The Board reserves the right to reject the candidature of any ineligible candidate at any stage of recruitment.
(iii) The Board reserves the right to cancel a part of or entire process of examination or a part of it due to administrative reason(s) and in case of unfair means, cheating or other irregularities/malpractice noticed by the Board. The Board also reserves the right to cancel or set up a new examination centre and divert the candidates to appear at that examination centre if required."
22. Even otherwise, repeatedly in the advertisement, the respondents have mentioned that the candidates must read the instructions carefully.
23. As such, the present case is of violation of the instructions as mentioned in the advertisement and in the OMR sheet. The respondent DSSSB has relied upon these very instructions to 12 Item 50 OA No.1832/2023 cancel the candidature of the applicant. Further, they have also explained that they had erroneously declared the result of the applicant as being provisionally short listed, but before the final result, they have corrected the mistake.
24. They have stated that allowing the applicant to be declared successful, would go against the uniform yardsticks/policy of the DSSSB which has been applied by them to every such candidate who committed the similar mistake of wrong bubbling in the OMR sheet. It will be an injustice to other candidates who committed similar mistake and were ousted from the selection process.
25. The decisions of the Hon‟ble Apex Court relied upon by the applicant pertain to the principles of natural justice being violated or to the substantive right of the litigants. To our mind, the same are not applicable in the present case since the applicant in the present case is merely a candidate till she is finally selected. The rules and regulations under which the selection is processed are the same for every candidate and are required to be followed strictly. The process of selection is a product of the rules declared at the beginning of the process. Surely the respondent cannot be faulted for following the rules. 13 Item 50 OA No.1832/2023 Further respondents reserve the right to cancel the candidature of a candidate if any discrepancies come to their notice even after the declaration of the final result or even joining of the candidates.
26. The judgment relied upon by the respondents are more applicable to the facts of the case as the candidate before the Hon‟ble Apex Court had bubbled the incorrect language option in the OMR sheet and on this ground, the Hon‟ble Apex Court has held that the respondents/candidate therein had violated the instructions by using two different languages in the application form and the OMR answer book. The instructions to the candidates were clear that both the application form and OMR answer booklet were to be filled in one language of their choice. The applicant having violated the instructions, the order passed by the Hon‟ble High Court was set aside and the appeal filed by respondents was allowed.
27. In view of the discussions above, we have no difficulty in holding that the error committed by the applicant cannot be said to be minor in nature. It is the roll number, that determines the identity of the candidates. The candidate who appeared in the examination for recruitment for the post of teacher, is a mature person. The applicant should have read the instructions and 14 Item 50 OA No.1832/2023 should have correctly filled the entries relating to roll number, registration number, question booklet etc. Admittedly, the petitioner has incorrectly filled roll. In the OMR sheet it was clearly mentioned in Instructions, that the candidates should carefully read particulars in the OMR sheet and if roll number or question book series is wrongly filled or any entry is not filled, then it shall not be evaluated. Despite these instructions well within the knowledge of the applicant, she wrongly filled up roll number. Such mistakes cannot be said to be minor in nature. If this Court permits such mistakes to be corrected and the instructions and rules framed to be followed, are allowed to be ignored where lacs of candidates are participating in the examination, this will lead to a situation where there will be no end to such exercise. Therefore, the applicant is not entitled for the relief as prayed. Consequently, the OA is dismissed. No costs ( Dr. Sumeet Jerath ) ( Harvinder Kaur Oberoi ) Member (A) Member (J) /uma/