Andhra HC (Pre-Telangana)
Smt. Sujatha Cheruku And Another vs The State Of Telangana, Rep. By Its ... on 30 November, 2017
Author: A. Ramalingeswara Rao
Bench: A. Ramalingeswara Rao
THE HONBLE SRI JUSTICE A. RAMALINGESWARA RAO
Writ Petition Nos.26845 of 2017
30-11-2017
Smt. Sujatha Cheruku and another . Petitioners
The State of Telangana, Rep. by its Principal Secretary, Higher Education Department, Hyd. . Respondent
Counsel for the Petitioners : Sri P.S. Raja Sekhar
Sri N. Bharat Babu
Sri G. Kiran Kumar
Counsel for the Respondents: GP for Higher Education
Sri D. Bala Kishan Rao (SC for TSPSC)
<Gist :
>Head Note :
? Cases referred:
1. AIR 1983 AP 321
2. 1994 SCC Online AP 434 : (1995) 1 AnWR 289 (DB)
3. 2015 SCC Online Hyd 437
4. (1992) 2 SCC 206
5. (2014) 14 SCC 95
HONBLE SRI JUSTICE A. RAMALINGESWARA RAO
Writ Petition Nos.26845, 34025, 37243 and 40185 of 2017
Common Order:
These Writ Petitions are being disposed of by this common order, as the point involved in these cases is same.
It is commonly said that to err is human but the Public Service Commission wants the human beings to be perfect. The Commission can frame rules for obedience by the candidates but when unintentional errors not relating to the merit of the candidate creeps in, whether a strict application of the rule is proper or not is the point involved in these cases.
W.P.No.26845 of 2017 was filed by two candidates who appeared for the test for recruitment of Trained Graduate Teachers (TGT) and Post Graduate Teachers (PGT). It is their case that the second respondent issued Notification Nos.13 of 2017 and 14 of 2017 dated 14.04.2017 for recruitment of Post Graduate Teachers and Trained Graduate Teachers respectively in the Residential Educational Institution Societies. The petitioners applied pursuant to the said notifications as they were eligible for both the posts. Though they applied for both the posts, they were issued one Hall ticket each and the examination is also same. They further state that the notification was issued after about two decades and most of the job seekers are on the verge of maximum eligible age limit for the posts of Trained Graduate Teachers (TGT) and Post Graduate Teachers (PGT). They were assigned Hall Ticket Nos.1718200239 and 1718203226 respectively. A preliminary test was held on 31.05.2017. There are four question paper booklets having four series i.e., A, B, C and D and answer books contained four circles for filling up of the respective code of question paper series. The candidate is required to blacken (bubbling) OMR sheets to furnish the details such as Hall ticket number, test booklet series, paper code, venue code etc. The first petitioner states that when she appeared for the examination on 31.05.2017, the Invigilator gave her A series booklet by mistake, though it was meant for the candidate who was sitting before her. Since A series booklet was given to her, she darkened the circle A in the OMR sheet, but later on the Invigilator took back the A series booklet and gave B series booklet and advised her to erase the darkened circle by whitener and asked her to darken the B circle in the OMR sheet. Similar mistake occurred in the case of the second petitioner also. Thus a mistake occurred in darkening the circle in the OMR sheet. The results were published on 14.07.2017 and when the petitioners names did not figure in the list of successful candidates though they secured more marks than the cut off marks as per the key published by the second respondent, they enquired and came to know that their OMR answer sheets were not processed as they darkened wrong booklet codes. The mistake occurred in the above circumstances and by darkening a wrong circle they are not going to derive any benefit. When the main examination for TGT was going to take place on 27th and 28th August 2017 and PGT on 03rd and 04th September 2017, they filed the above Writ Petition on 09.08.2017 challenging the action of the second respondent in not evaluating their answer scripts of preliminary examination.
This Court while admitting the Writ Petition on 22.08.2017 directed the respondents to evaluate the OMR sheets of the petitioners and declare their results. It was also stated that if the petitioners were within the zone of consideration for writing the main examination, they should be permitted to write the main examination on 28.08.2017 and also on 04.09.2017.
The second respondent filed W.V.M.P.No.4555 of 2017 seeking vacation of the said order stating that the first petitioner wrongly bubbled both the circles of A and B against the place provided for bubbling the question booklet series in the OMR sheet and there is no evidence of whitener against both the circles and it is invented for the purpose of Writ Petition. The other allegation that the candidate who was supposed to sit before her was absent on that day was also false, as she was present and she was given question booklet series D. The Invigilator also submitted a report stating that before commencement of examination she demonstrated the procedure for filling up and bubbling the circles of OMR sheet. In respect of the second petitioner, she did not bubble any circle against the space provided for bubbling the question booklet series in the OMR answer sheet, but she also raised a similar allegation in the present Writ Petition which is not correct. It is also stated that a sample OMR answer sheet was also placed in the Commissions website for the purpose of candidates convenience, so that they can practice on the sample OMR answer sheet before going to the examination. Paras 8 and 9 of the instructions to the candidates makes it clear that the encoding or bubbling in the original OMR sheet would be final and no claim would be entertained. It was also clearly stated that forgetting to bubble any code will not entail the valuation of answer scripts. It was also stated that when similar matters came up before the A.P. Administrative Tribunal, the applications were dismissed and the said order was confirmed by this Court in W.P.No.20088 of 2003. When the matter was carried to the Honble Supreme Court in S.L.P(C) No.1300 of 2004, the same was dismissed on 13.02.2004.
Now it is stated that the petitioners were qualified in the preliminary examination and appeared for the main examination also, but the results of main examination were not declared in view of the pendency of the Writ Petition.
W.P.No.34025 of 2017 was filed by a candidate who appeared for the recruitment test to the post of Physical Education Teacher in the Residential Educational Institution Societies. The notification was issued on 14.04.2017 and test was proposed to be held on 17.09.2017 and 18.09.2017. The process of recruitment comprises of only one written examination which was to be held in two papers i.e., paper-I and paper- II. The examination was held on 17.09.2017 and 18.09.2017 for Papers I and II respectively. She appeared for the said examinations and the key was released on 05.10.2017. But, she states that while answering paper-I on 17.09.2017, while filling up of her personal details in the OMR sheet, due to examination tension she wrongly filled up her roll number in the row pertaining to figure 0 as well as 1. Thus, she blackened two bubbles instead of one bubble with respect to figure 0. She realized the said mistake at the end of the examination and requested the Invigilator to rectify the mistake. But, the Invigilator informed her that no correction would be permissible and if corrections are made the answer script would not be valuated at all. However, she correctly filled up the answer script while appearing for Paper-II. She submitted a representation on 21.09.2017 to the second respondent to condone the said mistake and when there was no response, she filed the said Writ Petition on 10.10.2017.
W.P.No.37243 of 2017 was filed by seven candidates challenging the action of the second respondent in issuing Memo No.514/TGT.REIS/2016, dated 23.10.2017 in respect of the petitioners 1 to 5 and Memo No.513/TGT.REIS/2016, dated 23.10.2017 in respect of the petitioners 6 and 7 refusing to evaluate the main examination papers meant for the posts of PGT and TGT. They appeared for the preliminary test on 31.05.2017 and the results were declared on 14.07.2017. Their results were not declared and when they came to know that their OMR answer sheets were not processed as there was an error in darkening the circles, they filed the Writ Petition in view of the interim order passed in W.P.No.26845 of 2017 as aforesaid. The case of the petitioners 1 to 5 is that the illustration provided in the question booklet consisted of 10 rows in the OMR field for entering 10 digit Hall ticket number and it started with 0 and ended with 9 in the last row. In the OMR sheet form provided in the TSPSC website also it started with 0 and ended with 9, but in the actual answer sheet where the OMR fields were available, the number of circle started with 1 and ended with 0. In view of the examination stress they committed a mistake in darkening the circle 1 instead of 0 in the actual OMR sheet, though they have mentioned the correct Hall ticket number in the 10 boxes found above the circles. They stated that the said error occurred due to the difference in the illustration provided by the second respondent and the actual answer sheet. The petitioners 6 and 7 took the same stand as that of the petitioners in W.P.No.26845 of 2017.
It appears that the petitioners 1 to 5 earlier filed W.P.No.26710 of 2017 and the same was disposed of on 23.08.2017 directing the respondents to evaluate their answer scripts and basing on the marks obtained if they would come within the zone of consideration, permit them to the main examination and take action accordingly. In compliance with the said orders, the petitioners OMR sheets were considered for evaluation and were permitted to appear for the main examination. A memo was issued on 23.10.2017 to the petitioners stating that even though they were permitted for main examination their candidature cannot be considered in view of clear instructions contained in para IX (e) of the notification, paras 2, 9 and 10 of OMR sheet and paras 5 and 7 of question paper booklet.
W.P.No.40185 of 2017 is filed by the petitioner challenging the action of the respondent in not disposing of his representation dated 20.11.2017. The petitioner states that he belongs to Nizamabad District and is a local candidate of Zone-V. He belongs to Scheduled Caste category. He applied to the post of Physical Education Teacher pursuant to the notification No.16 of 2017 and he attended the written examination on 17.09.2017 and 18.09.2017. The petitioner forgot to bubble one numerical number in the space provided for column No.5 of Hall ticket number. As per the key published by the respondent, he would secure 211 marks out of 300 marks, but due to mistake committed by the petitioner his answer sheet was not evaluated. Though he submitted a representation on 20.11.2017, when no action was taken, he filed the present Writ Petition.
Thus, there is no dispute on facts and the second respondent has not filed any counter affidavit in W.P.Nos.34025 of 2017 and 37243 of 2017. The petitioners in W.P.No.26845 of 2017 and 37243 of 2017 appeared for the PGT and TGT examinations, whereas the petitioners in W.P.Nos.34025 and 40185 of 2017 appeared for the Physical Education Teacher examination. But, the point involved in these Writ Petitions relates to the mistake committed by the petitioners while bubbling the circles meant for Hall ticket numbers. Their case is not based on mistake in answering any question. It is also their common case that they entered the Hall ticket number manually in the box provided for the said purpose, but a mistake was committed in bubbling the circles. In the light of the above facts, it has to be seen whether the petitioners are entitled for any relief in the present Writ Petitions.
The candidates are directed to use Blue/Black Point Pen only, hence there will not be any possibility for rectifying the mistake. The case of the respondents is based on para IX (e) of the notification and the relevant portion reads as follows:
In case of Off-line examination, if any candidate fails to mark the Booklet Series, Roll Number etc., in the OMR Answer Sheet, the Commission reserves the right to invalidate such Answer Sheets as Answer Sheets are valued by Optical Mark Scanner. No request for reconsideration of such rejected/invalidated cases will be entertained under any circumstances whatsoever.
The respondents also relied on paras 2, 9 and 10 of OMR sheet and they read as follows:
2. Use Blue/Black point Pen only to fill this sheet i. EXAMPLE to fill the circles.
ii. Mark your series code, which is (A or B or C or D) printed on your question booklet at the appropriate place in the OMR sheet by darkening one relevant circle out of four given, failing which your answer sheet will be invalidated.
If your Test Booklet Series is B please fill as shown below
9. The script will not be valued if the candidate i. Writes the Hall Ticket No. in any other place of OMR sheet, except in the space provided for the purpose.
ii. Writes irrelevant matter, including the religious symbols, words, prayers or any communication whatsoever, in any place of the OMR answer sheet.
iii. Forgetting to bubbling Test Booklet Series, Paper Code, Hall ticket no. or Bubbling the other than your allotted test booklet code, other paper code, other Hall ticket no.
iv. If any type of tampering (rubbing the circles with chalk powder/scratching the circles with razors etc) is noticed will lead to invalidation of the candidature.
10. Wrong/Erroneous/Incomplete darkening/Shading of Hall ticket No. Booklet Series Code, paper Code, Venue code etc., will lead to invalidation of the Candidature.
The respondents also relied on paras 5 and 7 of Question paper booklet and they read as follows:
5. The Test Booklet is printed in four (4) Series, viz. A or B or C or D. The Series A or B or C or D is printed in the right-hand corner of the cover page of the Test Booklet. Mark your Test Booklet Series on side 1 of the OMR Answer Sheet by darkening the appropriate circles with Blue/Black ball point pen.
Example to fill up the Booklet series If your Test Booklet Series is A, please fill as shown below:
B C D If you have not marked the Test Booklet Series at side 1 of the OMR Answer Sheet or marked in a way that it leads to discrepancy in determining the exact Test Booklet Series, then, in all such cases, your Answer Sheet will be invalidated without any further notice.
7. Mark Paper Code and Roll No. as given in the Hall Ticket with Blue/Black Ball Point Pen by darkening appropriate circles in side 1 of the OMR Answer Sheet. Incorrect/not encoding will lead to Invalidation of your Answer Sheet.
Example: If the Paper Code is 8000 and Roll No. is 1309102001, fill as shown below:
Paper Code Registered Number/Hall Ticket Number Learned counsel for the petitioners relied on the decisions reported in State of Andhra Pradesh v. A. Vijayalakshmi , The Convener, EAMCET-93, Andhra University College of Engineering, Visakhapatnam v. Divyash K Shah , The Union of India, Ministry of Personnel, Public Grievances and Pensions, North Block, New Delhi, rep. by its Secretary v. Guduru Raja Surya Praveen , Staff Selection Commission v. Muttavarapu Ashok (WP No.3708 of 2016 dated 19.02.2016), Union of India v. Guduru Raja Surya Praveen (SLP No.9879 of 2016, dated 01.07.2016), Union of India v. Muttavarapu Ashok (SLP No.24110 of 2016 dated 16.12.2016) and Shiramdas Mahesh v. Telangana State Public Service Commission (WP No.3862 of 2017 dated 24.04.2017).
Whereas, learned counsel for the second respondent relied on the decisions reported in Karnataka Public Service Commission v. B.M. Vijay Shankar , S. Obula Naidu v. The Andhra Pradesh Public Service Commission, rep. by its Secretary, Nampally, Hyderabad (WP No.20088 of 2003, dated 24.09.2003), Secretary, Tamil Nadu Public Service Commission v. A.B. Natarajan and B. Deepkumar v. Secretary, Telangana State Public Service Commission (WP No.41273 of 2016 dated 15.03.2017).
The case in State of Andhra Pradesh v. A. Vijayalakshmi (supra) relates to the entrance examination for the MBBS course in the Medical Colleges for the academic year 1982-83. The mistakes committed by the candidates and consequential non evaluation of their answer scripts came up for consideration. This Court was examining the evaluation of answer scripts by the computer. When similar mistake was committed and the respondents refused to revaluate the answer scripts on the ground of disobedience of the instructions, the Division Bench of this Court examined the issue whether it would be fair and just to totally reject the answer scripts without looking into the mistake and evaluating or measuring the merit of the candidates. This Court held that it was nobodys case that coding of roll number was wrongly done intentionally and with an oblique motive, but however the Court rejected the argument of violation of principles of natural justice advanced on behalf of the students and examined the circumstances under which they committed the error. It observed as follows:
13. Most of the candidates are minors. They are adolescents who are just at the age of 16 years. The mistakes committed by them are accidental slips or errors. The Roll Number had to be codified immediately before the commencement of the examination. They submit that they even informed the invigilators about the mistakes committed by them and wanted separate answer books but they were assured that their answer books would be valued. It is not simply possible to rule out that these young persons must have committed this accidental error in their anxiety and out of emotional excitement built up in them just before the distribution of the question papers. The matter is one which involves not only the future career of the students but the satisfaction and happiness of their parents as well. The evaluation of the examination is intended to promote the growth and development of the students. The student community or the parents should not be allowed to be affected by the emotional built up of the students just before the examination. The entrance test to be held must be allowed to measure what it purports to measure - ability of the students. A major objective of selection for admission is to secure social justice and to spread the net wide enough to catch all available talent. It is therefore desirable - may necessary - to make some allowance for the accidental slips or errors committed as a result of the handicaps created by the adverse conditions under which some students from rural areas, from urban slums and from unprivileged classes have come to take the course. While we do positively feel that the students should follow and obey the instructions issued to them in the matter of answering the questions we do also feel a humanitarian approach is required when the errors committed by them are accidental and unintentional. A Contextual approach involves treating the law in action from a broader base and from its social and moral context. Such a contextual approach will be more realistic than bare exposition of the legal rules. The answers have not been valued at all and we are informed that they can be valued by the computer since the answers have been given only in pencil. But the machine cannot decipher the Roll Number which ahs been incorrectly coded. It is however, abundantly clear from the instructions given to the examinees in para 2 that the centre of the Examination and Roll number are also to be filled up by pen at the top of the answer sheet. Therefore, no difficulty will be experienced in the identification of the answer script even though the computer cannot decipher the coded Roll number. The answer scripts it appears, have to be sent again to Delhi for valuation.
But that course is unavoidable. The public have no confidence in manual valuation because it is susceptible to pressures and pulls from persons in position and authority. In the circumstances we direct the Director, Medical Education to have the answer scripts of the petitioners valued by the computer and thereafter identify the answer sheets himself on the basis of the roll number given in pen on the answer sheets. On the basis of the marks the Director will then examine the eligibility of these petitioners in the order of merit for admission to the First year M.B.B.S. Course for the year 1982-83 and admit such of those who are entitled for admission to the course on the basis of merit.
That decision was rendered at the early stages of computerization.
In Karnataka Public Service Commissions case (supra) the writing of Hall ticket number on the cover page in the space provided for it and in the other place of answer scripts in disregard of instructions issued by the Service Commission came up for consideration. The Court noticed clear instructions in that regard. The Honble Supreme Court, while upholding the right of the Service Commission not to evaluate the answer scripts for violating the instructions gave relaxation as one time opportunity.
In The Convener, EAMCET-93, Andhra University College of Engineering, Visakhapatnam v. Divyash K Shah (supra) the case of two students who wrote their Hall ticket numbers at prohibited places in the answer scripts in the EAMCET Examination 1993 came up for consideration before a Division Bench of this Court when the Writ Petition was allowed by a learned Single Judge. In that connection the Division Bench observed by relying on Karnataka Public Service Commissions case (supra) as follows:
5..While we must make it clear that there cannot possibly be any challenge to the objectives of the instruction and to a demand for its rigorous compliance as any latitude shown otherwise may result in eroding of the fairness of the examination, yet it cannot be said that there cannot be any exception whatsoever in any circumstance, the very purpose of the instructions being only to avoid identification of the answer paper of the candidate. If the erasure is itself such that the roll number is beyond identification, strictly speaking it can be said that the roll number had not been written at all. It is well known that EAMCET examination is taken by young persons and the possibility of their making accidental mistakes cannot be ruled out. If by such an accident or confusion the Hall - ticket number is written at a prohibited place, but on becoming conscious the candidate erases it beyond recognition, hardly any injury can be said to have been done and it would be denial of justice to demand a mechanical compliance of the instructions that the answer papers should not be valued. This question was not before the Apex Court in the cited decision nor the Division Bench in W.A.No.1023 of 1993. As a matter of fact the Division Bench in its observation also took the same view as we are now taking. In repelling the contentions of the two appellants before it that cases of identically situated candidates had been entertained by the learned single Judge whereas their case has been rejected, it observed "The learned Counsel for the appellants also contends that the scripts of the similarly situated students were valued, but the scripts of the appellants were denied. The learned single Judge after perusing the scripts of the candidates who appeared for the test at the Government Women's College centre found that some of the candidates no doubt put the numbers in the prohibited space but they were either struck off beyond identification or covered with white liquid". Therefore it can be said that only the appellants violated the instructions mentioned in the answer sheet". Impelled by such considerations we are not in agreement with the submission advanced by Mr. Haranath that even if the roll numbers after erasure are beyond recognition, yet those answer papers must not be valued.
6. However, looking at the answer scripts we find the conclusion reached by the learned single Judge, so far as petitioner No.1 is concerned, not to be factually correct inasmuch as the erasure made of the figures 76159 are not such which makes it non - identifiable. The roll number is clearly readable and could afford sufficient identification of the candidate and hence the decision of the Convener not to get the answer paper valued cannot be interfered with. But so far as the answer paper of the petitioner No.2 is concerned, the erasure makes it impossible for identification of the roll number.
7. In the result the appeal is partly allowed as against the 1st respondent but is dismissed in so far as the 2nd respondent is concerned. No costs.
The case in S. Obula Naidu v. The Andhra Pradesh Public Service Commission, rep. by its Secretary, Nampally, Hyderabad (WP No.20088 of 2003, dated 24.09.2003) is a case arising out of the orders of Tribunal dismissing the applications of the candidates who were not awarded marks to their answer scripts due to improper encoding of their register numbers/optional code. But, in that case also the Division Bench of this Court, while confirming the orders of the Tribunal did not give reasons.
Though the case in B. Deepkumar v. Secretary, Telangana State Public Service Commission (WP No.41273 of 2016 dated 15.03.2017), dealt by a Division Bench arose out of a similar mistake in bubbling the Hall ticket number, no reason was assigned by the Division Bench except confirming the order of the Tribunal.
The case in Secretary, Tamil Nadu Public Service Commission v. A.B. Natarajan (supra) related to large scale violation of instructions and the following observations of the Supreme Court reflect the circumstances under which the Supreme Court refused to interfere and it cannot be a binding precedent in the facts of the instant case.
14. If the candidates start giving indications with regard to themselves by writing their name or some code word or some indication with an intention to convey the same to an examiner, so that he may have some undue favour, is a thing which is not approved. If such an attempt is permitted to be made, sanctity of the examination work would not be maintained. The entire object behind giving code number etc. would be frustrated if all these things are permitted or tolerated.
15. Normally, a straightforward candidate, who does not want to indulge in any malpractice, would never make any effort to reveal his identity or make any special marking in his answer book. The purpose behind doing something abnormal or something which is not permitted, can be said to be an indication to the examiner about the identity of the candidate. Such an action on the part of the candidate cannot be tolerated if one wants clean, fair and transparent process of selection.
16. In the instant case, it is an admitted fact that there were serious violations of the instructions given to the candidates while answering the questions. Although all these details were placed before the learned Single Judge, the learned Single Judge did not give importance to these irregularities and dismissed the petitions, but when the appeals were filed, in our opinion, the Division Bench of the High Court rightly understood the importance of such irregularities and allowed the appeals by setting aside the selection of the candidates who had committed such irregularities while writing their answer books. We are of the view that if such a strict view is not taken by a constitutional body which has been entrusted with the work of selecting best candidates, the entire purpose behind having the Commission or any other such body for examining merit of candidates would be frustrated. We are, therefore, of the view that the appellate Court was absolutely justified in allowing the appeals and by holding that all those candidates who had committed material irregularities could not be declared selected.
17. Several allegations had been made with regard to the procedural aspect. It had been submitted that all the selected candidates had not been joined as Respondents and even the State of Tamil Nadu had not been joined as a Respondent initially. Initially only one petition had been filed when the result had not been declared and it was also not possible for the Petitioners to join all selected candidates. Subsequently, an advertisement had been given in the newspapers giving indication about the pendency of the petition so as to enable the selected candidates to appear before the Court. Moreover, the appointment letters gave an indication of the fact that a litigation challenging their appointment was pending in the High Court. In spite of the aforesaid fact being stated in the appointment order and the advertisement, if selected candidates did not bother to appear before the Court, by no stretch of imagination, it can be said that the selected candidates were not given an opportunity to represent their case. We, therefore, do not find any substance in the allegations with regard to non-joinder of selected candidates or even the State of Tamil Nadu.
18. The candidates who had applied for Class-I post, if selected, were to be Class-I Officers of the State of Tamil Nadu. Not following the instructions given to them while appearing in the examination, which had been conducted for their selection, would either mean that they were so careless that they did not read or bother about the instructions to be followed or they wanted to give some indication to the examiner about their identity. In either case, such a candidate can not be selected. A candidate, who is so careless that he does not bother about his own interest, cannot be expected to become a good officer. Interest of the candidate is to get through the examination and for that purpose he has to follow the instructions. By not following the instructions, he does not take care of his own interest. So, if he has written the answer books carelessly without bothering about the instructions given to him, he is a careless person who must not be appointed as an officer and if he has done it deliberately, then also he should not be appointed as an officer because one who plans such illegalities even before joining his service, cannot be expected to become a fair and straightforward officer. So, in either case, such a candidate cannot be selected for appointment as an officer and that too a Class-I Officer of any State.
Another Division Bench of this Court in The Union of India, Ministry of Personnel, Public Grievances and Pensions, North Block, New Delhi, rep. by its Secretary v. Guduru Raja Surya Praveen (supra) examined the case relating to the non-evaluation of paper-II of answer sheet on the ground that the candidate failed to shade/blacken the test form number in the answer sheet in an examination conducted for Combined Graduate Level Examination 2014 for recruitment to different posts for which Graduation from any recognized University was the minimum requisite qualification. In the said case, the Central Administrative Tribunal allowed the application of the candidates and against the said order the case came before a Division Bench of this Court. While upholding the order of the Central Administrative Tribunal it observed as follows:
9. Providing an equal opportunity to compete for selection to public employment is a fundamental right enshrined under Articles 14 & 16 of our Constitution. In matters of such fundamental rights, no impediment which is more in the nature of a technicality should be allowed to play a substantive role resulting in denial altogether of such rights.
To the extent possible, fundamental rights should be allowed to have a free flow effect and impact. Therefore, looked at from any perspective, failure to thicken a couple of circles not with regard to the answers to be furnished by the candidate to the questions 1 to 200, but with regard to the test form number, in our opinion would not be fatal. In fact, in the present case, the test form number has been accurately filled- in, in the column provided for that purpose in the answer sheet. There is also a corresponding verification exercise by thickening the circle concerned furnished down below the test form number. Due to lapse of concentration, obviously induced by the enormous pressure, one would feel at the initial stage of subjecting himself to an examination, an error resulted in not thickening the circle relating to the token number and such technical error should not result in negation of the right to be considered for public employment notwithstanding the demonstrable merit processed by the candidate concerned. We are, therefore, of the opinion that the failure on the part of the Staff Selection Commission to evaluate the answer sheet of the respondent relating to Paper-II of the Tier-II test that was conducted on 12.04.2015 as an erroneous decision. In fact, we should also record that, pursuant to an interlocutory order passed by us on 14.10.2015, the answer sheet of the first respondent herein was got evaluated and the learned Assistant Solicitor General has, brought on record the order dated 06.11.2015 passed by the Ministry of Personnel, Public Grievances & Pensions, Department of Personnel & Training, Staff Selection Commission (Southern Region), bringing it out that the first respondent herein has qualified in Tier-II for appearing in the interview for posts other than the Statistical Investigator Grade-II and also for such posts for which interview is not forming part of the selection process. In other words, the merit of the first respondent herein has been held established. We have taken on record the communication dated 06.11.2015 of the Regional Director of the Staff Selection Commission (Southern Region) which was placed before us along with a memo dated 12.11.2015 by the learned Additional Solicitor General.
10. We are, therefore, of the opinion that there is no merit in this writ petition, inasmuch as, the order passed by the Central Administrative Tribunal does not warrant any interference at our hands.
11. But however, we are of the opinion that when the process of direct recruitment to various posts in various civil services of the Central Government is undertaken, the primary concern is to pick up the most meritorious candidate from the respective segments for selection. Picking up the most meritorious candidate would also additionally sub-serve the larger public interest apart from complying with the principle of equality contained under Article 14 and equal opportunity contained in Article 16 of our Constitution. The very purpose of undertaking direct recruitment is to ensure the best of the most talented are picked up for public employment. By appointing such meritorious candidate, the efficiency of public services would attain the necessary standards which are set for that purpose. Therefore, an element of flexibility to ignore non- substantive errors committed by a candidate would only enhance and promote the larger public interest. Hence, if, there are any such similar cases as that of the first respondent herein, are lying, answer sheets of such candidates irrespective of the fact whether one has approached one High Court or the other should be undertaken for evaluation. The principle underlying is that the litigative ability and the free access to candidates is available to only few candidates and the financial ability to pay for the litigation expenses cannot act as a premium for securing justice. Justice to all and that too the inexpensive one is the motto of our Courts. All the unemployed young persons may not have adequate financial support to carry on with litigation. It is not the petitioner who has approached the Court alone who might get the ultimate relief, but it might be the one which may not have the necessary wherewithal to approach the Court who should be getting the actual relief, if he is better candidate than the one who has approached the Court. But, that would depend upon the relative merit of the candidates. In fact, this is the very same principle applied while dealing with the litigation relating to admission to medical colleges, engineering colleges and other higher educational institutions is pursued by the Courts. Therefore, a similar approach is called for even in the matter of public employment. The writ petition is accordingly dismissed, but however, without costs.
12. Therefore, we direct the Staff Selection commission to undertake evaluation of the answer sheets of all such candidates who might have made an error in not thickening/blackening the appropriate circles relating to one column or the other for hall ticket number, roll number and accordingly declare their results at the earliest.
Though the orders in W.P.Nos.41273 of 2016 and 3708 of 2016 passed by the A.P. Administrative Tribunal in identical circumstances were upheld by this Court when the Tribunals dismissed the applications of the candidates, no reasons were assigned by the respective Division Benches while upholding the orders. Hence, they do not provide any guidance.
All the decisions on this point were considered by a learned single Judge of this Court in Shiramdas Mahesh v. Telangana State Public Service Commission (supra) in a case arising out of the candidates answer scripts not evaluated on the ground that the personal particulars of the petitioners were not filled in or circles were not darkened and there was double entry for one particular box. He chose to follow the order in W.P.No.41273 of 2016 and dismissed the Writ Petition on the ground that the said order was later in point of time. But, his attention was not drawn to the Division Bench decision of this Court in Union of India v. Guduru Raja Surya Praveen (supra).
I already held that the Division Bench order in W.P.No.41273 of 2016 or in W.P.No.20088 of 2003 does not contain any reasons and hence does not operate as a binding precedent on me while deciding the present dispute.
Lastly, an attempt was made to show another order in W.P.No.17900 of 2017 of a Division Bench of this Court dated 08.06.2017 which confirmed the order of the Tribunal in O.A.No.780 of 2011 dated 20.07.2011 dismissing the application of the candidate in identical circumstance by following the order in W.P.No.20088 of 2003. All the three Division Bench decisions are not binding precedents as they did not contain reasons and they merely affirm the orders of the Tribunal.
An opportunity comes once in a life time to many persons. That opportunity cannot be taken away by taking the aid of an un-intentional mistake committed by such person in life. All the examinations conducted for employment or for seats in Colleges are competitive and that competition cannot be eliminated by virtue of mistakes committed by the candidates unintentionally and not related to the merit of the candidate. One has to see the intention behind the mistake when it can be discerned. The mistake relating to the booklet number, question number, hall ticket number and the personal particulars of the candidate will not have any bearing on the substantive merit of the candidate. In the examination hall, where a competitive examination is held, the mental condition of the candidate would be different and it is prone to committing mistakes. Unless those mistakes are related to the merit of the candidate, to the extent they can be condoned can be condoned and an opportunity should be given to the candidate to compete along with others. In the above cases, the candidates admittedly committed a mistake in bubbling the relevant hall ticket number/roll number, though in the boxes provided they have correctly written the number. Thus, the answer scripts can be easily identified, though it cannot be processed by the computer. Even if it involves some manual error, such type of answer scripts can be valued as it does not relate to the merit of the candidate.
In that view of the matter, I am of the opinion that these Writ Petitions are liable to be allowed and they are, accordingly, allowed. The second respondent is directed to evaluate the answer scripts of the petitioners and depending on the marks obtained by them, shall take further action. There shall be no order as to costs.
As a sequel thereto, the miscellaneous petitions, if any, pending in these Writ Petitions shall stand closed.
____________________________ A.RAMALINGESWARA RAO, J Date: 30th November, 2017