Rajasthan High Court - Jodhpur
Vikram Kumar vs High Court Of Judicature For Rajasthan ... on 12 May, 2023
Bench: Vijay Bishnoi, Praveer Bhatnagar
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
D.B. Civil Writ Petition No. 6454/2023
Vikram Kumar S/o Shri Brijesh Kumar Jangid, Aged About 31
Years, Village Sutharon Ka Par, Post Jaisindhar, Tehsil Gadra
Road, District Barmer.
----Petitioner
Versus
High Court Of Judicature For Rajasthan At Jodhpur, Through Its
Registrar General.
----Respondent
For Petitioner(s) : Mr. Rakesh Arora
For Respondent(s) : Mr. Chayan Bothra
HON'BLE MR. JUSTICE VIJAY BISHNOI
HON'BLE MR. JUSTICE PRAVEER BHATNAGAR Order 12/05/2023
1. This writ petition has been filed by the petitioner with a prayer that the respondent may be directed to evaluate his OMR Sheet and declare his result and, if otherwise, found eligible and meritorious, he may be granted appointment on the post of Junior Judicial Assistant pursuant to the advertisement issued by the respondent on 05.08.2022, whereby the applications were invited from the eligible candidates for appointment on the post of Junior Judicial Assistant, Junior Assistant and Clerk Grade-II in the Rajasthan High Court, Rajasthan Judicial Academy, Rajasthan Legal Aid Service Authorities and District Courts of the State of Rajasthan.
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2. The petitioner has applied for the post of Junior Judicial Assistant pursuant to the said advertisement and he was allotted Roll No.470714 and admission card has also been issued to him by the respondent. The written examinations for the aforesaid recruitment took place on 12.03.2023 and in the said written examination, the petitioner was provided OMR Sheet, however, he did not darken the bubble indicating question booklet series in the said OMR Sheet and left it blank, therefore, he has filed a representation before the respondent after few days of the written examinations with a prayer that he may be allowed to darken the bubble in the column of question booklet series in the OMR Sheet, which he has failed to mark. The request of the petitioner has not been accepted by the respondent. Hence this writ petition.
3. Learned counsel for the petitioner has submitted that due to inadvertence, the petitioner has failed to darken the bubble in the column of the question booklet series and the said inadvertence was bonafide, therefore, the respondent should have allowed the representation of the petitioner in the interest of justice.
4. Per contra, learned counsel for the respondent has vehemently opposed the writ petition and argued that in the advertisement as well as in the admission card, it is clearly mentioned that the candidate is required to mark question booklet series in the OMR sheet by darkening the bubble, failing which, OMR sheet shall be excluded from the process of evaluation.
5. Learned counsel for the respondent has submitted that the controversy raised by the petitioner in this writ petition has already been set at rest by the Division Bench of this Court in Union of India & Ors. Vs. Jagdish Chandra Jat (D.B. Civil (Downloaded on 15/05/2023 at 10:28:21 PM) (3 of 8) [CW-6454/2023] Writ Petition No.12323/2020 decided on 19.08.2021), whereby the Division Bench of this Court has held that no opportunity can be granted to a candidate to correct any mistake in the OMR Sheet at a later stage. Against the said order, an SLP was preferred before the Hon'ble Supreme Court, which came to be dismissed vide order dated 08.11.2021.
6. Heard learned counsel for the parties and perused the material available on record.
7. Admittedly, in the admission card, it is specifically mentioned that if any candidate fails to mark question booklet series in the OMR Sheet by darkening the bubbles in the question booklet series, his/her OMR sheet will not be evaluated.
8. The instruction No.5 of the admission card reads as under:-
"OMR Answer sheets of the candidates who do not darken the bubble of the Question Paper Booklet Series or darken multiple bubbles or by wrong method or use whitener to erase the earlier darkened bubble or spread of ink over the bubble shall be excluded from the process of evaluation."
9. This Court in Union of India's case (supra) has held as under:-
"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, (Downloaded on 15/05/2023 at 10:28:21 PM) (4 of 8) [CW-6454/2023] 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 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 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."
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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, 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 (Downloaded on 15/05/2023 at 10:28:21 PM) (6 of 8) [CW-6454/2023] 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 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) (Downloaded on 15/05/2023 at 10:28:21 PM) (7 of 8) [CW-6454/2023] 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 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 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.
(Downloaded on 15/05/2023 at 10:28:21 PM)(8 of 8) [CW-6454/2023] 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."
10. Having taken into consideration the above referred judgment, we are of the view that there is no force in this writ petition, the same is, therefore, dismissed.
11. Stay petition is disposed off.
(PRAVEER BHATNAGAR),J (VIJAY BISHNOI),J
4-Taruna/-
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