Central Administrative Tribunal - Delhi
Suresh Kumar vs Staff Selection Commission on 12 February, 2016
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH, NEW DELHI
OA No. 2349/2014
Order Reserved on: 27.08.2015
Pronounced on: 12.02.2016
Hon'ble Mr. Sudhir Kumar, Member (A)
Hon'ble Mr. Raj Vir Sharma, Member (J)
Suresh Kumar,
S/o Sh. Rohtas Singh,
R/o 133, Shanti Vihar,
Deenpur, Nazafgarh,
New Delhi-110043.
- Applicant
(By Advocate: Sh. H.D. Sharma)
Vs.
1. The Chairman,
Staff Selection Commission (SSC),
CGO Complex, Block No.12,
Lodhi Road, Delhi-110003.
2. Secretary,
Department of Personnel & Training,
North Block, New Delhi.
- Respondents
(By Advocate: Sh. S.M. Arif)
ORDER
Hon'ble Shri Sudhir Kumar, Member (A) The applicant of this OA had appeared at the Upper Division Grade Limited Departmental Competitive Examination (LDCE, in short) for seeking selection to the Upper Division Grade of the Central Secretariat Clerical Service (CSCS, in short) cadre for the year 2003. The respondents had invited applications, and the applicant had taken the LDCE, but he was not in the select list for the year 2003. When he 2 OA No. 2349/2014 sought information through RTI Act, 2005 regarding the reasons for his exclusion, he was informed that his result was not declared, as he was awarded 'No' marks in Paper-II because of the condition that "candidates who do not code or affix their name, signature and Left Thumb Impression are rejected and awarded zero marks as policy of the Commission".
2. He has challenged through this O.A. the non-evaluation of his answer sheet of Paper-II, in which he claims to have attempted the paper quite well, as illegal, illogical and tantamount to punishing the applicant for no fault on his part on the ground that getting the Left Thumb Impression affixed by him was the duty of the Invigilator, and not his alone. He has, therefore, challenged the action of the Respondent No.1, as according to him, this amounts to punishing him for the fault of the Invigilator, who was duty bound to ensure the completion of the particulars and affixing of the applicant's Left Thumb Impression on the answer book concerned before affixing his own signature. The applicant's case is that had the Invigilator noticed that the Thumb Impression is not affixed, he ought to have got it done by the applicant then and there. He has submitted that his identity has never been in doubt at any point of time, and only after verification of that he was allowed to take the LDCE. He has, therefore, assailed the final result for the special LDCE conducted on 15.07.2012, declared by the respondents on 27.12.2013, and has taken the ground that for the fault of the Invigilator he is being penalized, for no fault on his part. 3 OA No. 2349/2014
3. The applicant has taken the further ground that he has scored very high marks in Paper-I in the LDCE, and had his Paper-II been checked, it would have given him a fare chance of his placement in the merit list which has since been declared by the respondents, and that the actions of the respondents have denied to him a chance for regular promotion to the UDC cadre. In the result, he had prayed for the following reliefs after annexing all the relevant documents etc:-
Relief-
"i) To set aside and quash the policy of awarding Zero mark only on account of the LTI been not affixed there due the fault of invigilator.
ii) To direct the respondents to evaluate the Paper II of the applicant and award marks;
iii) To direct respondents to include applicant's name in the select list 2003 if after awarding the mark for Paper II the applicant is found qualified.
iv) To make consequential revision of select list 2003.
v) May also issue such other order(s)/direction(s) as may be deemed fit and appropriate in the facts of the case".
4. The respondents filed their counter reply on 27.02.2015 clarifying the scheme of LDCE held on 15.07.2012, and explained that as the applicant had not carried out the instructions laid down on the top of the answer sheet, to affix his Left Thumb Impression, his candidature had to be cancelled. It had been denied that it was the duty of the Invigilator alone, and it was submitted that he himself also being an educated 4 OA No. 2349/2014 person, and already a Govt. servant, it was his responsibility to have filled up the particulars in the answer sheet correctly. Any action which was arbitrary, illegal or illogical in any manner was denied by the respondents, and it was submitted that the applicant is trying to shift the responsibility for his own failure, and to blame the Invigilator alone, and therefore he is not entitled to any reliefs as prayed for, and had prayed for the OA to be rejected.
5. The applicant filed a rejoinder on 06.04.2015, pointing out that the reply filed by Respondent No.1 has not answered the averments made by him in the OA, and it was submitted that affixing of the Thumb Impression, was not mandatory, as claimed by the respondents, but that it was only directory. It was reiterated that when the Invigilator was mandatorily required to follow the instructions issued to him, and verify the particulars before affixing his signatures, he had failed to do so, and for the lapse and fault of the Invigilator, the applicant cannot be made to suffer. He had, therefore, once again prayed for the OA to be allowed, by holding the non-evaluation of the answer sheet in the absence of his Thumb Impression as unsustainable.
6. Heard. The case was very vehemently argued by the learned counsel for both the sides. Learned counsel for the applicant relied upon the judgments and orders of the Delhi High Court and of this Tribunal as follows:-
"i) Miss Manisha Surana vs. Central Board of Secondary Education & Anr. C.W.P. No.2545/96 decided by the Delhi 5 OA No. 2349/2014 High Court in 02nd August, 1996 64 (1996) Delhi Law Times 257;
ii) Mirza Saba Alam Baig vs. University of Delhi & Ors., 2003 VIAD Delhi 585, 107 (2003) DLT 331, 2003 (71) DRJ 88
iii) DSSSB and Anr. vs. Neeraj Kumar and Anr. judgment dated 24.02.2012 in WP (C) NO.1004/2012 of Delhi High Court, and
iv) Ravinder Malik vs. Staff Selection Commission and Anr.
(OA No.2063/2012) decided by a Coordinate Bench of this Tribunal on 13.02.2013".
7. On the other hand, learned counsel for the respondents had relied upon the judgment of Delhi High Court dated 01.10.2012 in WP (C) 5375/2012 Roshan Lal vs. Union of India & Anr.
8. The facts of the case lie in a very brief compass. Both sides have admitted that the applicant had not affixed his Left Thumb Impression at the prescribed place in the Answer Book of his Paper No. II. Therefore, we are left with only appreciating the applicability of the cited case law on the point.
9. In the Single Bench judgment in Miss Manisha Surana vs. Central Board of Secondary Education & Anr (supra), the Hon'ble Delhi High Court had in Para 7 & 10 stated as follows:-
"7. The petitioner in the present case completed all the details except not filling the booklet code on top of side 2. This was required to be completed by her and in case she failed to fill up the column, the invigilator was entrusted with the task of seeing that the same was filled up by the petitioner correctly. The invigilator who was a representative of the respondents clearly failed in his duty in not checking the answer sheet and on the contrary informed the petitioner that everything was in order. For this lapse on the part of the invigilator, the petitioner cannot be penalised. She may have committed the lapse inadvertently but had given all 6 OA No. 2349/2014 the remaining particulars on the answer sheet which would have enabled the respondents to evaluate the same. The rejection on this score cannot be upheld in the interest of justice and fair play.
8 & 9.xxxxxxxxxx(Not reproduced here).
10. The second contention of the respondents in view of the settled position also fails and is liable to be rejected. The learned counsel for the respondents were specifically asked as to whether this minor omission reflects any motive on the part of the petitioner not to fill up one column of page 2 of the answer sheet and whether any plea of unfair means can be substantiated against her. The answer to the same was in negative. Therefore in the facts and circumstances of the case, the petitioner is entitled to the relief as prayed. The petition, as a consequence, is allowed and the respondents are directed to evaluate the answer sheet of the petitioner and declare her result within one month from today. There will be no order as to costs."
(Emphasis supplied)
10. Another Single Bench judgment in Mirza Saba Alam Baig vs. University of Delhi & Ors. (supra) related to a case of copying in an examination, and it is seen that none of the observations of the Single Bench judgment of the Delhi High Court is applicable to the facts of the instant case.
11. In DSSSB and Anr. vs. Neeraj Kumar and Anr. (supra), it was a case of an application signed in English capital letters, which was declared to be de-categorized as an invalid application by the respondents, but in Paragraphs 9,10 & 11 of its judgment, the Hon'ble Delhi High Court had concluded that the signature as affixed was not fully in capitals. But, both the facts as well as the ratio of that judgment also are not applicable to the facts of the instant case. 7 OA No. 2349/2014
12. The case of Ravindra Malik vs. SSC (supra), was very much similar to the instant case, in which, the case of Mohit Sharma vs. Staff Selection Commission, decided on 04.11.2011 in OA No.3751/2011 by a Coordinate Bench of this Tribunal had been noticed, where the candidate had wrongly quoted the Roll Number on the paper on the front sheet, and was awarded zero marks. This Tribunal had dismissed the OA on the ground that in spite of specific instructions/warnings, the applicant had committed a mistake, and the Delhi High Court had also confirmed that finding in its judgment in W.P. (C) No. 8364/2011 decided on 28.11.2011. After taking a cue from the observation of the Delhi High Court in DSSSB vs. Neeraj Kumar (supra) that instructions given for filling up an answer book are merely directory and not mandatory, the Bench had gone ahead and allowed the OA.
13. However, the learned counsel for the respondents relied upon the judgment in Roshan Lal vs. Union of India & Anr. (supra), which being a short judgment may be reproduced by us in its entirety below:-
"1. The OMR answer-sheet of the petitioner has been produced. The question paper has also been produced. Instruction No.7 in the question paper clearly highlights:-
"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 candidates will be treated as cancelled."
2. In the OMR answer-sheet, the petitioner has not coded the "TEST FORM NO.‟ 8 OA No. 2349/2014
3. Learned counsel for the petitioner states that the OMR answer-sheet contains the following:-
"Note: Invigilator to sign after verifying whether all particulars have been filled in by the candidates properly."
4. It is urged that it may be true that the petitioner was negligent in not shading the relevant figures and letters in the answer-sheet pertaining to the TEST FORM NUMBER, but since the invigilator was also negligent in not ensuring that all particulars have been filled by the candidate i.e. the petitioner, relief must be granted to the petitioner by directing that the OMR answer-sheet be subjected to the optical reading on the computer after shading the relevant figures and letters.
5. Now, lakhs sit at competitive examination and the only way is to use technology. The multiple choice questions have to be answered by shading the relevant option in the OMR answer- sheet, which is then scanned, and with reference to the software and information stored, marking is done by the computer. Needless to state, the computer would only read such OMR answer-sheets where relevant information pertaining to the TEST FORM NUMBER is available after shading.
6. We need to speak a little more on the subject.
7. The same set of 200 questions, obviously having only one correct answer of out of the four options, if having only one set of question paper may have the problem, in today's world of technology, of being scanned by a pocket device scanner and through the medium of a cell phone or a likewise device, transmitted electronically and the correct answers sent to different candidates. To prevent this, the sequence of the questions is altered and in this manner four to eight sets of identical question papers i.e. having the same questions, but not in the same sequence are prepared. The computer, after the scanned answer-sheets are fed as the data, with reference to the TEST FORM NUMBER identifies, whether the questions have been rightly answered. If the TEST FORM NUMBER is not shaded, the answer sheet would obviously be not read.
8. To explain it to a layman, if after optical reading, a computer has to identify, say a cat or a rat, the best drawn cat or the rat, but minus the tail, would not be read/identified by the computer.
9OA No. 2349/2014
9. Coming to the argument advanced, the answer-sheet in question has a Part „A‟ and a Part „B‟. Part „A‟ has to be filled in with a ball pen and the Note in question on which petitioner relies forms part of Part „A‟. Thus, the duty of the invigilator is to ensure that Part "A" of the answer sheet has been properly filled up by the candidate and not Part "B" where the shading has to be done and the questions answered. It has to be so, for the reason, in Part "A" the roll number and the ticket number have to be filled in by the candidate and with reference to the same i.e. the numbers filled in and the original ticket issued to the candidate, which contains not only the roll number but even the photograph and the specimen signatures, the task of the invigilator is to pen her signatures and the Note in question requires the invigilator to so do after verifying that the said particulars i.e. pertaining to Part „A‟ have been correctly filled in by the candidate. Thereafter it is the candidate and her God alone.
10. The writ petition is dismissed.
11. No costs".
(Emphasis supplied)
14. In the above case, a distinction had been drawn between the Part 'A' of the form, and Part 'B' of the form, where the shading had to be done by the candidate, and the questions answered, and the role of the Invigilator had been held to be confined to ensure that Part 'A' of the answer sheet had been filled up properly by the candidate.
15. It is seen from pages 14,15 & 16 of the OA that the applicant had signed and affixed his Left Thumb Impression both in the morning and evening in the Attendance Sheet at page-14, and had also affixed his Left Thumb Impression at the prescribed place in the morning Paper, the first page of which has been produced at Page-15 of the Paper book. But it was only in the first page of the evening paper, photocopy produced at page-16, that it is seen that the applicant had signed, but not put his Left 10 OA No. 2349/2014 Thumb Impression, though the Invigilator had written his name and signed below that.
16. The learned counsel for the applicant relied upon the Note above the Invigilator's name and signature, which clearly said that "Invigilator to sign after verifying that all particulars/left hand thumb impression had been filled and affixed by the candidates properly", while learned counsel for respondents, on the other hand, emphasized upon the instructions given to the applicant at the top of that page, which stated as follows:-
"Answer-Book not bearing Candidate's name, Ticket No., Roll No., Signature and LTI will not be evaluated and such candidates would be awarded 'Zero' mark".
17. For not affixing Left Thumb Impression in the proper box on the first page of Paper-II, while he did affix the Left Thumb Impression in the Attendance Sheet at the same point of time, as seen from Page-14, it is seen that the applicant had himself made an incurable mistake, when he was fully aware of the procedure which he had followed in the forenoon also, as is apparent from Page-15. The signature of the Invigilator had only compounded the error, but it cannot be said that all the blame can be ascribed only to the Invigilator. It could very well be the case that the Invigilator had placed page-14 Attendance Sheet, and Page-16 Answer Book together before the applicant, and after having witnessed him put his Left Thumb Impression on the Attendance Sheet as produced at page- 14, in a hurry, and in good faith, signed on the front page of Paper-II, as 11 OA No. 2349/2014 reproduced at Page-16, because the time available to Invigilators before the start of the examination for completing such process is quite limited.
18. Therefore, it is held that since the judgment in Roshan Lal vs. Union of India & Anr. (supra) has been delivered by a Division Bench of the Delhi High Court, it would certainly prevail over the Single Bench judgment of Delhi High Court in Miss Manisha Surana vs. Central Board of Secondary Education & Anr. (supra).
19. Also, in the facts and circumstances of the instant case, the benefit of the judgment in DSSSB vs. Neeraj Kumar and Anr. (supra) does not enure to the applicant before us, and he cannot escape his own liability for not affixing his Left Thumb Impression at the appropriate place, when he had done so in the Attendance Sheet at the very same time, as seen from the Paper-book, and as seen from the morning Attendance Sheet at Page-16 of the Paper-book. Therefore, the respondents cannot be faulted for having followed their clear cut instructions, when the OMR Reader, as utilized by the respondents, has failed to read any marking of the Left Thumb Impression.
20. Therefore, in terms of the Division Bench judgment of the Delhi High Court in Roshan Lal vs. Union of India & Anr. (supra), we find no merit in the OA, and the OA is, therefore, dismissed, but there shall be no order as to costs.
(Raj Vir Sharma) (Sudhir Kumar) Member (J) Member (A) cc.