Allahabad High Court
Manoj Kumar And 99 Others vs State Of U.P. And Another on 14 February, 2020
Author: Surya Prakash Kesarwani
Bench: Surya Prakash Kesarwani
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Reserved on 5.2.2020 Delivered on 14.2.2020 Court No. - 5 Case :- WRIT - A No. - 20396 of 2019 Petitioner :- Manoj Kumar And 99 Others Respondent :- State of U.P. and Another Counsel for Petitioner :- Shivendu Ojha,Radha Kant Ojha (Senior Adv) Counsel for Respondent :- C.S.C.,A.K.S.Parihar And Case :- WRIT - A No. - 21469 of 2019 Petitioner :- Arun Kumar And Another Respondent :- State of U.P. and Another Counsel for Petitioner :- Shivendu Ojha,Radha Kant Ojha (Senior Adv) Counsel for Respondent :- C.S.C.,A.K.S.Parihar And Case :- WRIT - A No. - 162 of 2020 Petitioner :- Anand Kumar Tripathi And Another Respondent :- State of U.P. and Another Counsel for Petitioner :- Hausihla Prasad Mishra Counsel for Respondent :- C.S.C.,A.K.S.Parihar Hon'ble Surya Prakash Kesarwani,J.
1. Heard Sri R.K. Ojha, learned Senior Advocate assisted by Sri Prakash Chandra Tripathi and other learned counsels for the petitioners and Sri A.K.S. Parihar, learned standing counsel for the State respondents.
Facts:-
2. Briefly stated facts of the present case are that pursuant to advertisement No. 01 of 2016 inviting applications for recruitment on the post of Trained Graduate Teachers, the petitioners submitted applications. They were issued admits cards. They appeared in the written examination. The OMR (Optical Mark Reader) Answer sheet for written examination was in two parts, briefly as under:-
Part-I
(i) Name of the two subjects attempted.
(ii) Test booklet series.
(iii) Roll Number.
(iv) Subject Code.
(v) Questions booklet series.
Part-II
(i) Questions on four subjects, namely Geography, History, Economics and Civics in separate blocks each containing 63 questions with multiple answer choice.
3. The Answer sheet contained instructions / advisory which are reproduced below:-
"IMPORTANT INSTRUCTIONS FOR MARKING RESPONSES ON ANSWER SHEET
1. Use only Black Ball Point Pen for darkening the circles.
2. Candidate must fill the Roll No., Subject Code and Question Booklet series (A,B,C or D) in the answer sheet failing which his candidature will be automatically be rejected.
3. Signature should be made within the box.
4. Darken only one circle for each question out of the 4 options as explained below:-
Correct Method of Marking Response ...........................
Wrong Method of Marking Response ...........................
5. Marking should be DARK and should completely fill the circle so that letter/ number inside the circle is not visible.
6. Make marks only in the spaces provided. Please do not make any stray mark on the answer sheet.
7. Rough work, if any must be done on the specified place of the question booklet.
8. Do not fold the Answer Sheet. It may lead to difficulty in evaluation.
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.
10. Please handover the Answer Sheet to the invigilator before leaving the examination hall.
11. Overwriting or erasing will be treated as multiple marking and no mark for that question would be awarded
12. Please do not right or mark on this answer paper outside the demarcated areas. It may invalidate your Answer Sheet.
13. Please see the method of marking your Subject Code, Roll No. and Booklet Series."
4. The selection for the aforesaid recruitment is being carried by Uttar Pradesh Education Service Selection Board, Prayagraj, under the provisions of The Uttar Pradesh Secondary Education Services Selection Rules, 1998 (herein after referred to as the Rules, 1998). Rule 12(3) of the Rules, 1998 is relevant for the purposes of present controversy which is reproduced below:-
"The Board shall evaluate the Answer sheets through examiner to be appointed by the Board or through computer and the examiner shall be paid honorarium at the rate to be fixed by the Board."
5. In paragraph 15 of the leading writ petition, the petitioners have stated that the OMR Answer sheet consist of two parts. This fact has been admitted in the counter affidavit of Sri Naval Kishore, Deputy Secretary, Uttar Pradesh Secondary Education Service Selection Board, Prayagraj. Certain important averments have been made by the petitioners in paragraphs 16, 17, 21, 22, 23, 25 & 27 of the writ petition which have been replied by the respondent Board in paragraph 5 of the counter affidavit. The averments made in paragraph 28 of the writ petition have been replied by the respondent Board in paragraph 6 of the counter affidavit. All these paragraphs of the writ petition and the counter affidavit are reproduced below:-
Writ Petition Counter affidavit "16. That the Petitioner have appeared in the examination and filled up their respective OMR sheets. For kind convenience of this Hon'ble Court, the Petitioners are annexing detailed Chart containing names, father's name, Roll number, Booklet Series , two subjects opted from Civics, Geography, History and Economics, total numbers of questions attempted and expected marks. For kind perusal of this Hon'ble Court, true Copy of the detailed chart containing details of the Petitioners is being filed herewith and marked as Annexure -3 to this writ petition.
17. That, as stated above, all the petitioner while filled up OMR sheets, they duly filled up first part of OMR sheets and there is no defects in the first para of OMR sheets at all.
21. That by perusal of the instructions given in OMR sheets it is very much clear that if there is any defect in first para of OMR sheet then candidature will be cancelled as per instructions no.2 of OMR sheet.
22. That in instruction nos. 6 and 12 of OMR sheets it is clear that items are only related with respect to the fact that if some mark is made on other part of OMR sheets, so it is not attracted to the petitioners.
23. That it is also relevant to mention that if overwriting is made in two places then mark will not be allotted to the candidates and it is also not case of the petitioners.
25. That once it is clear that in first part of OMR sheet, the petitioners have opted questions of particular sections then they cannot be denied for awarding marks against the correct answer of the correct questions.
27. That by perusal of the instructions it is also clear that candidature will be cancelled if booklet series and subjects are not properly opted and mentioned and by perusal of this part of OMR sheet of the petitioners it is clear that the Petitioners have opted subjects and also put their booklet series and signatures properly, therefore, candidatures of the Petitioners cannot be cancelled and copies properly checked.
5. That in reply to the contents of paragraph nos. 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26 & 27 of the writ petition it is stated that advertisement no. 1 of 2016 for trained graduate teacher in social science was issued. Written examination was held and result was declared on 25.10.2019. In column no. 9 it was averred that invalidation of answer sheet due to incomplete / incorrect filling will be the sole responsibility of the candidate. For the subject social science, two options were to be filled out of geography, history, economics and civics. Since the petitioners have answered the question of other subjects also, therefore evaluation of that answer may not be done due to violation of the instruction averred in column no. 12. In column no. 12 the instruction in given as' please do not write or mark on this answer paper outside the demarcated areas, it may invalidate your answer sheet. In Special Appeal No. 834 of 2013 this Hon'ble Court has clearly held that in case a teacher could not fill application form correctly and his appointment is made, this will effect the carrier of students. The operative part of the order dated 30.5.2013 passed in Special Appeal No. 834 of 2013 are quoted below:-
"We are not inclined to interfere in this special appeal because interference in such matters would result in thoroughly incompetent or utterly negligent persons becoming teachers and spoiling the future of the children whom they will teach.
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."
28. That it is also relevant to mention that earlier the Respondent no.2 has issued an advertisement no.01/2013 for appointment of Assistant Teacher in L.T. Grade for Social Science Subjects in other sections against few questions and it was checked properly and their names were found place in the select list. For example the person namely Mr. Akhand Singh has applied for the post of Assistant Teacher in L.T. Grade for Social Science Subject against the advertisement no.01/2013 having Roll no. 020915720 and who has marked in one section which he has not opted against few questions, however, his copy has properly checked and managed by the Board and his name was also found in the select list. For kind perusal of this Hon'ble Court, True/ photostat Copies of the advertisement no.01/ 2013 and OMR sheet along with relevant part of result/ select list containing name of Mr. Akhand Singh are being filed herewith and marked as Annexure-6 to this Writ petition."
6. That in reply to the contents of paragraph no. 28 of the writ petition it is submitted that petitioners cannot claim parity of any mistake done earlier and since they have violated the instruction nos. 6, 9 & 12 hence their answer sheet have been held invalid. Instruction nos. 6, 9 & 12 are as follows:-
Instruction No. 6 Make marks only in the spaces provided. Please do not make any stray mark on this answer sheet.
Instruction No.9 Answer sheet will be processed by electronic means. Invalidation of Answer sheet due to incomplete / incorrect filling will the sole responsibility of the candidate.
Instruction No. 12 Please do not write or mark on this Answer paper outside the demarcated areas. It may invalidate your Answer Sheet."
6. Perusal of the copies of OMR Answer sheets collectively filed by the petitioner as Annexure 4 to the writ petition, shows that most of the petitioners have darkened one or two circles of a subject other than the two subjects opted by them in Part-I of the OMR Answer sheet. The Board has not evaluated such Answer sheets on the ground that such candidates have violated instruction nos. 6, 9 & 12 of the instructions accompanying the Answer sheet. Hence, the petitioners have filed the present writ petition praying for the following reliefs as mentioned in the leading writ petition:-
"(a) A writ order or direction in the nature of certiorari quashing the impugned result / select list dated 25.10.2019 (Annexure -5 to the writ petition) declared / published by the respondent no. 2.
(b) A writ order or direction in the nature of mandamus commanding the respondent no. 2 to evaluate OMR sheets of the petitioners.
(c) A writ order or direction in the nature of mandamus commanding the respondent no. 2 to declare result of the petitioners and also call for interview and further selection be made in accordance with procedure as provided, after declaration of the result of the petitioners."
Submissions on behalf of the petitioners:-
7. Learned counsel for the petitioners submits that OMR Sheet / Answer Sheet is in two parts. In the first part, if there is any error, then as per instructions, the Answer Sheet / OMR Sheet is not to be evaluated and the candidature will automatically be rejected. The second part of the OMR Sheet / Answer Sheet contains questions to be answered by a candidate. If there is no error in the first part of the OMR Sheet, but there is some minor mistake in marking answers to questions in the second part of the OMR Sheet then the respondent - U.P. Secondary Education Selection Board cannot say that entire answers given in the OMR Sheet shall not be evaluated at all. The stand taken by the learned standing counsel that OMR Sheet cannot be evaluated even in case of minor human errors, is contrary to the instructions of the respondent.
Submissions on behalf of the respondents:-
8. Learned sanding counsel submits that error of any kind in the OMR Sheet committed by a candidate shall result in rejection of the candidature or non evaluation of the OMR Sheet. In support of his submissions, learned standing counsel has relied upon a judgment of Hon'ble Supreme Court in the case of Karnataka Public Service Commission Vs. B.M. Vijaya Shankar AIR 1992 SC 952 (paragraph 2) and judgments of this Court in Kumari Richa Pandey Vs. Examination Regulatory Authority & another in Special Appeal Defective No. 117 of 2014 decided on 18.2.2014, Special Appeal No. 834 of 2013 (Ram Manohar Yadav Vs. State of U.P. & 3 others) decided on 30.5.2013, Writ-A No. 1452 of 2019 (Km. Bandana Vs. State of U.P. & another) decided on 14.2.2019, Writ-A No. 3347 of 2019 (Mritunjay Kumar Mishra & another Vs. State of U.P. & another) decided on 7.3.2019, Writ-A No. 19486 of 2019 (Shiv Prasad Devey & 39 others Vs. State of U.P. & another) decided on 7.12.2019, Writ-A No. 26173 of 2018 (Rajesh Kumar Yadav & 20 others Vs. State of U.P. & 2 others) decided on 17.12.2018, Writ-A No. 154 of 2020 (Meena Diwakar Vs. State of U.P. & 2 others) decided on 10.1.2020 and Writ-A No. 445 of 2020 (Sukhvir Singh Vs. State of U.P. & another) decided on 27.1.2020.
Discussion and Findings:-
9. I have carefully considered the submissions of learned counsels for the parties.
10. The respondents have neither stated in the counter affidavit nor placed any material before this Court which may indicate that the aforequoted instructions of the OMR Answer sheet has statutory force. There is no statutory provision which disentitles a candidate from evaluation of his Answer sheet, who, by inadvertence or due to human error marked one or two answer circles of a subject other than the two subjects opted by him in the first part of the OMR Answer sheet.
11. In the case of Hanuman Dutt Shukla & others Vs. State of U.P. & others (2018) 16 SCC 447 (paragraphs 7 & 8), the Hon'ble Supreme Court noted / observed as under:-
"7. It is submitted by Mr. P.P. Rao, learned Senior Counsel and other learned Senior Counsel / counsel appearing for the parties that as per the Recruitment Rules framed by the State Government to appoint the eligible candidates to the posts, referred to supra, there is not prohibition to disentitle a candidate from evaluating the answer sheets, who used whitener or blade in the relevant blocks in the OMR sheet (answer sheet). The said advisory note given by the Selection Board cannot be treated as a rule to declare such candidates who have used whitener or blade in the relevant blocks in the OMR / answer sheet as ineligible for evaluating their answer sheets. The statement is in conformity with the Recruitment Rules and it would further support the stand taken by the learned Advocate General, representing the respondent State of U.P. In making submission on the basis of written suggestions.
8. The appeals are disposed of in the aforesaid terms on the basis of the statement made by the learned Advocate General on the instructions received from the Principal Secretary (Home) and the legal submissions referred to supra."
12. It is admitted fact of the case that the petitioners have opted two subjects and darkened the circles accordingly in Part-I of the OMR Answer sheet. In Part-II of the OMR Answer sheet, they answered the questions of the two subjects opted by them, but inadvertently darkened one or two circles of a third subject, due to which their answer sheets have not been evaluated.
13. Thus, there arise two Questions in these writ petitions;
(a) whether the Rules, 1998 prohibits the Board to evaluate such OMR Answer sheets in which in Part-II the petitioners have inadvertently and unintentionally darkened answer circle of one or two questions of a subject other than the two subjects opted by them in Part-I of the OMR Answer sheet?
(b) Whether even on the basis of instruction nos. 6, 9 & 12 accompanying the OMR Answer sheet, the respondents can refuse to evaluate the Answer sheets of the petitioners?
Question-(a)
14. "The Uttar Pradesh Secondary Education Service Selection Board" (herein after referred to as the Board) has been constituted under Section 3 of the U.P. Secondary Education Service Selection Boards Act, 1982 (herein after referred to as the Act, 1982). Its powers and duties are described in Section 9 which includes in clause (a) preparation of guidelines on matters relating to the method of direct recruitment of teachers. The Board has been conferred power to make Regulations with the prior approval of the State Government to lay down the procedure to be followed for discharging its duties and performing functions under the Act. Sub-section (2) of Section 34 provides that the Regulations made under sub-section (1) shall not be inconsistent with the provisions of the Act or the Rules made under Section 35. The Rules, 1998 has been enacted in exercise of powers conferred under Section 35 of the Act, 1982.
15. Rule 12(3) of the Rules, 1998 mandates the Board to evaluate answer sheets through examiner to be appointed by the Board or through computer. Neither any material has been placed before me by learned counsels for the parties nor it has been argued by them that the instructions mentioned on the OMR Answer sheets are statutory or have statutory force. Even if it is assumed that the instructions as printed on the OMR Answer sheets have been lawfully framed by the Board and have statutory force yet in view of Rule 12(3) of the Rules, 1998, the Board cannot refuse to evaluate answer sheet of a candidate if there is no defect in Part-I of the OMR Answer sheet which relates to identity of candidate and subject opted etc. and the answer paper does not suffer from any major defect.
16. There are four sections in part-II of the OMR Answer sheet. Each section contained 63 questions on each of the four subjects in four separate blocks on the same page. The petitioners were required to answer questions in Part-II of those two subjects opted by them in Part-I and they answered it, but inadvertently they darkened one or two answer circle of questions of another subject. Such bonafide and unintentional mistake, in the absence of any statutory prohibition; cannot disentitle the petitioners from evaluation of their answers to questions in Part-II of the two subjects opted by them in part-I of the OMR Answer sheet. Rule 12(3) of the Rules, 1998 mandates Board to evaluate answer sheets of the written examination. It does not prohibit evaluation of answer sheets. Therefore, if by inadvertence a candidate has committed an unintentional / bonafide minor mistake in Part-II of the Answer sheet as aforesaid, then the Board cannot refuse to evaluate the entire questions answered by the petitioners.
Human Error:-
17. The concept of human error or inadvertent error has been explained in brief by Hon'ble Supreme Court in Price Water, Coopers (P) Ltd. Vs. CIT (2012) 11 SCC 316 (paragraph 15), as under:-
"The contents of the Tax Audit Report suggest that there is no question of the assessee concealing its income. There is also no question of the assessee furnishing any inaccurate particulars. It appears to us that all that has happened in the present case is that through a bona fide and inadvertent error, the assessee while submitting its return, failed to add the provision for gratuity to its total income. This can only be described as a human error which we are all prone to make. The calibre and expertise of the assessee has little or nothing to do with the inadvertent error. That the assessee should have been careful cannot be doubted, but the absence of due care, in a case such as the present, does not mean that the assessee is guilty of either furnishing inaccurate particulars or attempting to conceal its income."
(emphasis supplied)
18. The petitioners have opted two subjects in Part-I and marked answers to questions of those subjects in the respective sections in Part-II. Inadvertently and unintentionally, they also marked one or two circles in another section / subject in Part-II. This can only be described as human error. The petitioners should have been careful, but a little inadvertence like the present one cannot deprive them from evaluation of their answers to questions of the subject opted, particularly when there is no statutory prohibition under Rule 12 of the Rules, 1998.
Question-(b)
19. The instructions given in the OMR Answer sheets cannot be made basis to refuse to evaluate Answer sheets of the petitioners merely on the ground that they marked circles of one or two questions of a subject other than the two subjects opted by them in the first part of the OMR Answer sheet. The mistake committed by the petitioners is a minor human error. They are merely claiming for evaluation of answers to the questions of the two subjects opted by them in the part-I of the OMR Answer sheet. The answers marked by them in one or two circles of another section / subject (other than the opted two subjects), can neither be evaluated nor the petitioners are claiming its evaluation which are merely liable to be ignored
20. The petitioners have stated in paragraph 17 of the writ petition that they have duly filled up Part-I of the OMR Answer sheet and there is no defect in the first part. In paragraph 18 of the writ petition, the petitioners have stated that in haste they had filled up the answers to some questions of a subject other than the two subjects opted by them in part-I. In paragraphs 25 & 27 of the writ petition, it has been stated that the correct answers of the questions of the section (subject) opted by the petitioners in part-I, cannot be denied to be awarded marks. These paragraphs have been replied by the respondents in paragraph 5 of the counter affidavit in which they have not denied it.
21. In paragraphs 21, 22 & 23 of the writ petition, the petitioners have stated that if there is any defect in part-I of the OMR Answer sheet, then candidature will be cancelled as per instruction no. 2. Instruction nos. 6 & 12 of the OMR Answer sheet relate to facts when some mark is made on other part of the OMR Answer sheet, which are not attracted to the petitioners. Therefore, the instructions relating to overwriting shall not be attracted in the case of the petitioners. These paragraphs 21, 22 & 23 of the writ petition have been replied by the respondent Board in paragraph 5 of the counter affidavit, but no specific denial has been made.
22. Perusal of the instruction no. 2 shows that candidature of a candidate will automatically be rejected if he fails to fill up the roll numbers, subject code and question booklet series in the answer sheet. This instruction is attracted to the first part of the OMR Answer sheet.
23. Instruction no. 6 provides for making marks only in the spaces provided. The petitioners have put marks in the spaces provided. Therefore, this instruction has not been violated.
24. Instruction no. 9 is advisory in nature which provides for invalidation of Answer sheet due to incomplete / incorrect filling. This clause is also referable to part-I of the OMR Answer sheet.
25. Instruction no. 12 instructs not to right or mark on the Answer paper outside the demarcated areas. The petitioners have not written or marked outside the demarcated area. Nothing of this kind has been pointed out on facts by the respondents in their counter affidavit.
26. The judgment relied upon by the learned counsel for the respondents are of no help to them. In the case of Karnataka Public Service Commission (supra) relied by learned counsel for the respondents, the facts were that roll number was written not only on the space provided therefor, but also on the cover page of the answer book and on all pages inside the answer book. Therefore, the Commission was held to be justified in not evaluating the answer book. Such are not the facts of the present writ petition. In the case of Kumari Richa Pandey (supra), the candidate had not filled up the column of language in which she had attempted answers in OMR Answer sheet. In the case of Ram Manohar Yadav (supra), there was failure on the part of the candidate to fill up correctly the simple online application form for employment. In the case of Kumari Bandana (supra), the candidate failed to fill up correct subject. In the case of Mritunjay Kumar Mishra (supra), the facts were that the petitioner wrongly mentioned the subject in the first part. In the cases of Shiv Prasad Dubey (supra), Meena Diwakar (supra) and Sukhvir Singh (supra), the facts were that candidates wrongly filled up their roll numbers. Thus, all the judgments relied by the learned counsel for the respondents are distinguishable and have no bearing on the facts of the present case.
27. The petitioners have stated in paragraph 28 of the writ petition that in similar circumstances the OMR Answer sheet of some candidate who appeared in examination for recruitment pursuant to advertisement No. 01 of 2013, have been evaluated. This statement of fact has not been denied by the respondent in paragraph 6 of the counter affidavit which has been reproduced above. Therefore, the respondents cannot deny similar treatment to the petitioners.
28. The stand taken by the respondents for non evaluation of OMR Answers sheets of the petitioners, is not sustainable for one more reason. Instruction no. 11 provides that overwriting or erasing will be treated as multiple marking and no mark for that question would be awarded. Therefore, had the petitioners erased the mark inadvertently put by them in the circle of answers to questions of a non opted subject, then as per instruction no. 11 no mark was to be awarded. Petitioners are not claiming for marks for darkening a wrong circle. Therefore, such marking in the circle by inadvertence merely needs to be ignored.
Conclusion:-
29. For all the discussions made above, I hold that if a candidate correctly fills up the mandatory information in Part-I of the OMR Answer sheet, does not write or mark on his answer paper outside the demarcated area and hands over the answer sheet to the Invigilator before leaving the examination hall, then subject to instruction no. 11, the Part-II of the OMR Answer sheet bearing answers to the questions of the subject opted in Part-I, has to be evaluated in terms of Rule 12(3) of the Rules, 1998.
29. For all the reasons aforesaid, all the writ petitions are disposed off with the directions to the respondent no. 3 to evaluate OMR Answer sheet of such petitioners who have answered in Part-II of the OMR Answer sheet the questions of the two subjects opted by them, but inadvertently also marked one or two circles of another subject. Those petitioners who are found successful in the aforesaid written examination, shall be called for interview. Thereafter, their results shall be declared in accordance with law.
Order Date :- 14.2.2020 Arif