Punjab-Haryana High Court
Renu Sharma And Ors vs Haryana Public Service Commission on 20 January, 2025
Neutral Citation No:=2025:PHHC:008003
IN THE PUNJAB AND HARYANA HIGH COURT AT
CHANDIGARH
247 CWP-30581-2024 (O&M)
Date of Decision: 20.01.2025
RENU SHARMA AND ORS
... Petitioners
VERSUS
HARYANA PUBLIC SERVICE COMMISSION
... Respondents
CORAM: HON'BLE MR. JUSTICE VINOD S. BHARDWAJ.
****
Present: Mr. Deepak Vashishth and Mr. Sunil Bhardwaj,
Advocates for the petitioners.
Mr. Gurnoor Sandhu, Advocate for the respondent.
****
VINOD S. BHARDWAJ, J. (ORAL)
CM-20186-CWP-2024
Disposed of as having been rendered infructuous.
MAIN CASE
Challenging the order of 06.11.2024, whereby the respondent-
Commission declined the representations (Annexure P-4 and P-5) submitted
by the petitioners and has disqualified them for not filling up the bubbles for
booklet series in the Optical Mark Recognition sheet (hereinafter to be
referred to as “OMR sheet”), the petitioners have approached this Court with a
further prayer that their candidature be entertained as per merit list of the
eligible candidates, and if eligible, to permit them to participate in the
selection process.
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The present writ petition had initially been filed by three
petitioners, who were allowed to provisionally appear in the Subject
Knowledge Test vide an interim order passed by this Court on 13.11.2024.
Copy of the result of Subject Knowledge Test has been produced by the
counsel for the respondent-Commission in sealed cover which has been
opened in Court. Petitioner No.3 namely Annu bearing Roll No.17155 has not
been able to secure marks higher than the cut off marks prescribed for the
EWS category, hence, the present petition qua petitioner No.3 has been
rendered infructuous and is disposed of accordingly. The case is now being
examined with respect to the claims made by petitioners No.1 and 2, who have
obtained marks higher than the cut off marks in the Subject Knowledge Test
as per the result prepared by the respondent- Haryana Public Service
Commission (hereinafter referred to as ‘HPSC’)
Learned counsel for the petitioners contends that the HPSC had
issued an Advertisement bearing No.16 of 2024 on 21.06.2024 inviting
applications from the eligible candidates in the public domain for filling up
805 posts of Ayurvedic Medical Officer (Group-B) in Health & Ayush
Department, Haryana. The petitioners had applied for the said posts being
eligible and fulfilling the prescribed qualifications. On acceptance of their
applications, they were issued the Admit Cards by the HPSC to participate in
the Screening Test conducted by the HPSC. The result thereof was declared by
the HPSC on 09.10.2024. As per the result so declared, OMR sheets of 152
candidates were reported to have been rejected and they were consequently
declared disqualified for appearing in the ongoing recruitment process. The
candidature of the petitioners was also rejected by the HPSC. Aggrieved
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thereof, the petitioners approached the HPSC vide representations dated
10.10.2024 as well as 18.10.2024 respectively for seeking indulgence; and to
be informed about the reasons behind their disqualification and/or for rejection
of their OMR sheets.
No decision was however taken thereupon and thus compelling
the petitioners to approach this Court through CWP-29761 of 2024 titled as
‘Renu Sharma Versus Haryana Public Service Commission’ and CWP-29726
of 2024 titled as ‘Preeti Gehlawat Versus Haryana Public Service
Commission’. The same were disposed of by this Court vide order dated
05.11.2024 directing the HPSC to decide the representation(s) submitted by
the petitioners by passing speaking order.
In compliance thereof, the HPSC decided their representation(s)
and declined the same vide impugned order dated 06.11.2024 by assigning the
following the reason:
“It is intimated that it has been found that you did not
circle your Booklet Series in the OMR Sheet of the Screening
Test. Hence, your OMR Sheet was not evaluated during the
scanning process. There is no provision for manual checking of
OMR Sheets. Further, it was clearly mentioned in point no. 22 of
the “Important Instructions for the candidates mentioned in the
Admit Card that“Any omission or discrepancy in filling the Roll No.
Question Booklet Series and Question Booklet No. Will
render the OMR Answer Sheet liable for rejection”.
Further it was clearly mentioned in the OMR Sheet that
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“Any omission or discrepancy in filling the Roll No.
Question Booklet Series and Question Booklet No. Will
render the OMR Answer Sheet liable for rejection”.
Since you failed to comply with these specific instructions
and wrongly filled your Booklet Series in the OMR Sheet,
therefore, your OMR Sheet was rejected and was not evaluated.
In view of the above, your representations, dated 09, 10 &
18.10.2024 are rejected.”
Hence, the present petition has been filed.
Learned counsel for the petitioners has vehemently argued that
the inadvertent omission on the part of the petitioners was to the extent of not
darkening the bubbles for the booklet series and that the said omission was
inadvertent and the petitioners could not receive any undue benefit therefrom
and it had no possibility to vitiate the process of selection that had been
initiated. He further submits that darkening of the bubbles for the booklet
series was only an enabling provision for expediting the process of
compilation of the result and would have no further impact. He contends that
no prejudice, apart from a little inconvenience, is to be caused to the HPSC in
examining the OMR sheets of the petitioners and to afford them an
opportunity to compete in public employments. It is submitted that not every
inadvertent error or omission should be held to be fatal and that such rigidity
should not be adopted by the HPSC as it has the potential impact of ousting a
meritorious candidate solely on account of an inadvertent omission(s) or
oversights(s).
Learned counsel for the petitioners contends that a similar issue
has also arisen for consideration before the Allahabad High Court in a batch of
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writ petitions including the one titled as Manoj Kumar and 99 others Versus
State of U.P. and another’ passed in Writ-A No.20396 of 2019 decided on
14.02.2020 and reported as (2020) 4 ESC 1716. The relevant extract of the
same is reproduced hereinafter below:
“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
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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.
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Reliance has also been placed on the judgment of the Hon’ble
Supreme Court in the matter of Vashist Narayan Kumar Versus The State of
Bihar and others reported as 2024 AIR (Supreme Court) 248, wherein under
similar circumstances, the Hon’ble Supreme Court held that such inadvertent
error, which is not grave or does not amount to constituting wrong or
misleading information or even does not give rise to any criminal action,
should not result in causing grave prejudice or irreparable loss to a candidate.
A candidate cannot be penalized for an insignificant error that makes no
difference to the ultimate result. The relevant extract of the same is
reproduced hereinafter below:
“14. We are not impressed with the argument of the State that
the error was so grave as to constitute wrong or mis-leading
information. We say on the peculiar facts and circumstances of
this case. Even the State has not chosen to resort to any criminal
action, clearly implying that even they did not consider this error
as having fallen foul of the following clause in the
advertisement:-
“Instructions to fill online application form are available
on the website. It is recommended to all the candidates to
carefully read the instructions before filling the online
application form and kindly fill the appropriate response in
the following tabs. In case, the information given by the
candidates found wrong or misleading, the application
form will get rejected and necessary criminal actions will
also be taken against the candidate.”
15. Recently this Bench in Divya v. Union of India & Ors.,
2023:INSC:900: 2023 (13) Scale 730, while declining relief to
candidates who acquired eligibility after the date mentioned in
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the notification carved out a narrow exception. There, the
judgment in Ajay Kumar Mishra vs. Union of India & Ors.,
[2016] SCC OnLine Del 6563, a case very similar to the facts of
the present case, was noted. In Ajai Kumar Mishra (supra),
Indira Banerjee, J. (as Her Ladyship then was) speaking for the
Division Bench of the Delhi High Court in para 9 stated as
under:-
9. It is true that whenever any material discrepancy is
noticed in the application form and/or when any
suppression and/ or mis-representation is detected, the
candidature might be cancelled even after the application
has been processed and the candidate has been allowed to
participate in the selection process. However, after a
candidate has participated in the selection process and
cleared all the stages successfully, his candidature can
only be cancelled, after careful scrutiny of the gravity of
the lapse, and not for trivial omissions or errors.”
(emphasis supplied)
The exception for trivial errors or omissions is for the
reason that law does not concern itself with trifles. This
principle is recognized in the legal maxim – De minimis
non curat lex.
16. Learned counsel for the appellant, in her written
submissions, cited the following judgments in support of her
proposition that inadvertent error in filling up the date of birth
when no advantage is derived will not constitute a wilful mis-
representation and contended that in all those cases reliefs were
given to the candidates:
i) Arkshit Kapoor vs. Union of India, 2017 SCC
OnLine Del 10154 [para 20]8 of 34
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ii) K. Sangeetha vs. Tamil Nadu Public Service
Commission (2018) SCC OnLine Mad 5075 [Paras
9 & 11]
iii) Anuj Pratap Singh vs. Union Public Service
Commission, 2018 SCC OnLine Del 10982 [Paras
15,16 & 21]
iv) Shubham Tushir vs. Union of India, 2019 SCC
OnLine Del 9831 [Paras 4 & 10]
v) Staff Selection Commission & Anr. Vs. Shubham
Tushir LPA No. 237 of 2020 before the Delhi High
Court
vi) Poonam Pal vs. M.P. Gramin Bank, (2022) SCC
OnLine MP 2921 [Paras 9-12]
17. In fact, in Anuj Pratap Singh (supra), as is clear from para
14 of the said judgment, the candidate unable to correct the error
at the first point was forced to repeat it while submitting the
application for sitting in the main exam since he had no other
option. The Court accepted the explanation and condoned the
error in the filling up of the column pertaining to the date of
birth.
18. The learned counsel for the State drew attention to the
verification by the appellant, of the details in a printed form
furnished by the selection board. He contended that the appellant
signed the form which carried the date of birth. First of all, the
form was a printed form which reflected the date of birth as given
by the appellant and the appellant signed the printed form on
10.03.2018. We are inclined to accept the explanation of the
appellant that since the appellant was unaware of his own
mistake he had mechanically signed the printed form. It is only
later, on 11.06.2018, on the publication of the result that the
appellant realized the error. We do not think that the appellant
could be penalised for this insignificant error which made no
difference to the ultimate result. Errors of this kind, as noticed in
the present case, which are inadvertent do not constitute
misrepresentation or wilful suppression.
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19. In this case, the appellant has participated in the selection
process and cleared all the stages successfully. The error in the
application is trivial which did not play any part in the selection
process. The State was not justified in making a mountain out of
this molehill. Perhaps the rarefied atmosphere of the cybercafe,
got the better of the appellant. He omitted to notice the error and
even failed to avail the corrective mechanism offered. In the
instant case, we cannot turn a Nelson’s eye to the ground
realities that existed. In the order dated 22.11.2021 in C.A. No.
6983 of 2021 [Prince Jaibir Singh vs. Union of India & Ors.],
this Court rightly observed that though technology is a great
enabler, there is at the same time, a digital divide.”
Reliance has also been placed on the judgment of Hon’ble Gujarat
High Court in Special Civil Application No.21786 of 2023 titled as Vishal
Kumar Kanubhai Patel Versus High Court of Gujarat decided on
22.08.2024 wherein an identical situation had arisen yet again. The relevant
extract of the same is reproduced hereinafter below:
“3.1. The petitioners’ name did not figure in the said result and
in view thereof, the petitioners approached the respondent –
authority by representations representations dated 12.11.2023,
22.11.2023 and 29.11.2023. The said representations were not
answered by the respondent – authority and in view thereof, the
petitioners are constrained to file present petitions, praying for
the following reliefs:-
“(A) Direct the respondent authorities to include the
name of the petitioner in the list of candidates who have
obtained minimum qualifying marks in the Elimination Test
by checking/evaluating the OMR Answer Sheet of the
petitioner in connection with advertisement
No.RC/1434/2022(II), Annexure-B to this petition, and/ or10 of 34
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(B) Direct the respondent authorities to consider the
candidature of the petitioner for appointment to the post of
Assistant by including his name in the list of candidates
who have obtained minimum qualifying marks in the
Elimination Test in connection with advertisement
No.RC/1434/2022(II), Annexure-B to this petition, and
(C) Pending admission and final disposal of this petition
the Honourable Court may be pleased to direct the
respondent authority to reconsider the case of the
petitioner for recruitment to the post of Assistant in
connection with the advertisement No. RC/1434/2022(II),
Annexure-B to this petition, and
(D) Pending admission and final disposal of this petition
the Honourable Court may be pleased to direct the
respondent authority to consider and decide the
representation of the petitioner dated 22.11.2023 and
29.11.2023, Annexure-F to this petition, and
(E) Pending admission and final disposal of this petition
the Honourable Court may be pleased to direct the
respondent authority to permit the petitioner to participate
in the Main Written Examination in connection with the
advertisement No.RC/1434/2022(II), Annexure-B to this
petition, and
(F) Award the cost of this petition, and
(G) Grant any other relief or pass any other order which
the Honourable Court may consider as just and proper in
the facts and circumstances of the case.”
XXX XXX XXX
18. In light of the aforesaid undisputed facts, it is apposite to
refer to the ratio laid down by the Hon’ble Apex Court in the case
of Vashist Narayan Kumar vs. State of Bihar and others reported
in 2024 SCC OnLine SC 2. Paragraphs 10, 11, 12, 18, 19 and 26
thereof, read thus:-
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“Question for Consideration
10. The question that arises for consideration is whether
the error committed in the application form, which was
uploaded is a material error or a trivial error and was the
State justified in declaring the appellant as having failed
on account of the same?
Discussion
11. Admittedly, the appellant derived no advantage as
even if either of the dates were taken, he was eligible; the
error also had no bearing on the selection and the
appellant himself being oblivious of the error produced the
educational certificates which reflected his correct date of
birth.
12. The facts are undisputed. The appellant’s application
uploaded from the cyber café did mention the date of birth
as 08.12.1997 while his date of birth as recorded in the
educational certificate was 18.12.1997. It is also
undisputed that it is the appellant who produced the
educational certificates. He was oblivious of the error that
had crept into his application form. It is also undisputed
that the advertisement had all the clauses setting out that
in case the information given by the candidates is wrong or
misleading, the application form was to be rejected and
necessary criminal action was also to be taken. It also had
a clause that the candidates had to fill the correct date of
birth, according to their 10th board certificate. The clause
further stated that candidates will fill their name, father’s
name, address etc. correctly in the application form. It
states that any discrepancy, if found, while checking the
documents, the candidature of the candidate will stand
cancelled. There was also a clause providing for
correction of wrong/erroneously filled application forms,
which stated that the errors can be corrected once by12 of 34
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redepositing the application fee and filling a new
application. It also provided that those filling the
application on the last date could correct the application
till the following day.
18. In fact, in Anuj Pratap Singh (supra), as is clear
from para 14 of the said judgment, the candidate unable to
correct the error at the first point was forced to repeat it
while submitting the application for sitting in the main
exam since he had no other option. The Court accepted the
explanation and condoned the error in the filling up of the
column pertaining to the date of birth.
19. The learned counsel for the State drew attention to
the verification by the appellant, of the details in a printed
form furnished by the selection board. He contended that
the appellant signed the form which carried the date of
birth. First of all, the form was a printed form which
reflected the date of birth as given by the appellant and the
appellant signed the printed form on 10.03.2018. We are
inclined to accept the explanation of the appellant that
since the appellant was unaware of his own mistake he had
mechanically signed the printed form. It is only later, on
11.06.2018, on the publication of the result that the
appellant realized the error. We do not think that the
appellant could be penalised for this insignificant error
which made no difference to the ultimate result. Errors of
this kind, as noticed in the present case, which are
inadvertent do not constitute misrepresentation or wilful
suppression.
26. On the peculiar facts of this case, considering the
background in which the error occurred, we are inclined to
set aside the cancellation. We are not impressed with the
finding of the Division Bench that there was no prayer
seeking quashment of the results declared over the web. A13 of 34
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reading of the prayer clause in the writ petition indicates
that the appellant did pray for a mandamus directing the
respondents to consider the candidature treating his date
of birth as 18.12.1997 and also sought for a direction for
issuance of an appointment letter. A Writ Court has the
power to mould the relief. Justice cannot be forsaken on
the altar of technicalities.”
19. In the facts of the present case also, in the opinion of this
Court, the mistake committed by the petitioners herein in
encircling the roll number, which does not form a part of the
relevant instructions, as referred above, provide that filling of
wrong entry of question Booklet number and Set Code in the
OMR Answer Sheet will cause wrong examination result and the
candidate himself/herself will be responsible for the same.
Considering the aforesaid as a mistake also, the same is of a
trivial nature and in view thereof, exercising extraordinary
jurisdiction under Article 226 of the Constitution of India, the
prayers, as prayed for, are required to be allowed to the extent
that the respondent herein is directed to reconsider the case of
the petitioners in light of the aforesaid findings arrived by this
Court and declare the result of the petitioners with respect to the
elimination test conducted on 02.07.2023 pursuant to the
advertisement No.RC/1434/2022(II).
19.1. Upon declaring the result of the elimination test, if the
petitioners have cleared the said test as per the prescribed
criteria, the result of the written examination wherein, the
petitioners appeared in the said examination by interim order
passed in Civil Application No.2 of 2024 in Letters Patent Appeal
No.13 of 2024 also be declared, the petitioners have not claimed
equity.”
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Reference has also been made to the judgment of Hon’ble Delhi
High Court in the matter of Union of India and Others Versus Sumit Kumar
reported as 2017 SCC Online Del. 10138.
Referring to the above, counsel for the petitioners vehemently
argues that inadvertent trivial errors should not have the fatal consequences of
eliminating a candidate from being considered for appointment to a public
office. It is contended that where such omission does not have the impact of
vitiating the process of selection or does not result in a fraudulent tampering
with the final result or does not have the cascading effect of any mischievous
interference in the final outcome of the process of selection, thus
compromising the sanctity of the selection process to public office, any and
every trivial error, act or omission should not be fatal to the future and career
prospects of candidate.
Learned counsel for the HPSC, on the other hand, contends that it
had specifically prescribed the instructions for filling up the requisite details
in the Admit Card itself, and that it was mandatory for the candidates to fill up
the question booklet series properly and that in the event of failure to fill up
the bubbles for the booklet series in the prescribed manner, the candidature of
the candidate is liable to be rejected. The relevant extract of the instructions
issued by the HPSC are reproduced hereinafter below:
“IMPORTANT INSTRUCTIONS FOR THE CANDIDATES
2. Candidate should carefully read and follow the
instructions printed on the OMR Sheet and question
booklet.
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10. The candidate must write his/her Roll Number, Name and
out his/her Thumb Impression in the space provided for the
purpose on OMR/ Answer Sheet and Question Booklet. The
candidate must not write anything on the Question
Booklet/OMR (Answer) Sheet except for the purpose for
which pace has been provided.
13. The OMR Sheet will be triplicate (in the nature of 2
attached carbon copy). The filling up of
information/attempting of answers shall be on original
OMR sheet only. After completion of Examination
duplicate OMR sheet (candidates copy) attached there-
under is to be detached of/take away for personal use by
the candidate. Result is to be prepared by scanning of
original OMR sheet only. So it should be carefully
detached at the risk and responsibility of the candidate lest
it becomes unfit for scanning. Further, candidate shall be
responsible for detaching the original OMR sheet &
Commission’s carbon copy and for further handing over
both to invigilator.
22. Any omission or discrepancy in filing the Roll Number,
Question Booklet Series and Question Booklet Number will
render the OMR Answer Sheet liable for rejection.
23. The original OMR Sheet will be scanned by the computer
so fill/darken the circle completely and properly. It should
not be folded or damaged in any manner by the
candidate.”
(Emphasis Supplied)
It is submitted that the petitioners No.1 and 2 failed to darken the
bubbles in the booklet series as a result whereof, the computer cannot scan the
answers attempted by the petitioners. He contends that under similar
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circumstances, the decision of the Public Service Commissions in rejecting
candidature of a person already stands upheld in different judgments by
various Courts.
Reliance is placed on the judgment in the matter of State of
Tamil Nadu Versus G. Hemlatha reported as (2020) 19 SCC 430. The
relevant extract of the same is reproduced hereinafter below:
“2. The Respondent came to know that another candidate
belonging to the same community to which she belongs (Most
Backward Class) was selected in spite of her performance not
being satisfactory. The Respondent made a representation to the
Commission to furnish her marks in the written examination. On
07.01.2019, the Commission conveyed to the Respondent that her
Law Paper 1 written examination was invalidated in view of
violation of the Instructions to Applicants (hereinafter referred to
as ‘the Instructions’) issued by the Commission.
3. The Respondent filed a Writ Petition in the High Court for
a direction to declare her result and appoint her as a Civil Judge,
provided she has secured more marks than the last selected
candidate in the Most Backward Class category. The High Court
directed the Commission to announce the results of the
Respondent in Law Paper-1 of the main written examination. If
she was found qualified, the Commission was directed to conduct
the interview of the Respondent as a special case. The
Commission was further directed to complete the exercise and
announce the final result of the Respondent within a period of
four weeks from the date of the judgment. Being dissatisfied with
the said judgment of the High Court, this appeal is filed.
4. The Respondent contended before the High Court that she
did not violate any of the conditions stipulated by the
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Commission. She complained that the Commission wrongfully
invalidated her Law Paper-1. The High Court summoned the
answer sheets and found that the Respondent had underlined the
answer sheet with pencil at several places in Law Paper-1. The
High Court was also of the opinion that such marking was in
clear violation of Instruction 22 (1)(II) of the Instructions issued
by the Commission which prohibits candidates from using a
pencil for any purpose. Instruction 22 (1) (II) provides that:
“Penalty for violation of Commission’s instruction
in the descriptive type examination.
The answer books of the applicants will be
invalidated/marks deducted/ debarred for violations of any
one or more of the instructions, besides initiating criminal
action wherever necessary.
1) Invalidation
(i). …
(ii). Usage of whitener, sketch pens, pencil, colour
pencils, multi-colour pens, Crayons or any other
writing materials, for any purpose.”
XXX XXX XXX
8. 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 of the Constitution cannot
modify/relax the Instructions issued by the Commission.
9. The High Court after summoning and perusing the answer
sheet of the Respondent was convinced that there was infraction
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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 Taherakhatoon (D) By LRs v. Salambin
Mohammad and Chandra Singh and Others v. 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.
10. 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.
11. 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.
12. Roberts, CJ. in Caperton v. A.T. Massey Coal Co. Inc. held
that: (SCC Online US SC)
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“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.”
13. 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.
Reference is also made to the judgment of the Hon’ble Rajasthan
High Court in the matter of Payal Soni & Another Versus Rajasthan High
Court and Another bearing No.CWP-11861 of 2024 decided on 23.07.2024.
The relevant extract of the same is reproduced hereinafter below:
“4. Admittedly, petitioner no.1 did not fill and left blank the
marked space for filling question booklet series. Petitioner no.2
did not darken the bubble relating to question booklet series.
5. As the examination system of evaluation of OMR sheets is
based on system based evaluation mechanism using machines,
the respondents issued directions and instructions to all the
candidates including the petitioners giving detailed guidelines
and instructions with regard to marking/darkening in
the OMR sheets. The reason is that if the OMR sheet is not
properly filled up as per instructions, then the same cannot be
captured and evaluated by the mechanised system. Under the
instructions for marking/darkening the bubbles in20 of 34
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the OMR sheets, clause 6 clearly stated that while
filling/darkening the series of QPB-Question Paper Book in
the OMR sheet, bubble of series wrongly darkened or darkened
by wrong method or darkened multiple bubbles or not darkened
bubble or spread of ink over the bubble may disrupt
the evaluation process. The OMR instructions also insist proper
marking. If the question booklet series is not indicated through
proper marking and darkening of the bubble, it is obvious that
the OMR sheet cannot be evaluated in the system. It is for this
reason that the OMR sheet of the petitioners could not
be evaluated resulting in exclusion of the petitioners from the
process of selection.
6. It is of utmost importance that in order to preserve the
sanctity of the selection process for filling up posts under public
employment that the entire process is not only clearly laid down
but is scrupulously followed not only by the Examination Agency
but also by the candidates who choose to appear in the
examination. The candidate in order to ensure that he is allowed
to participate in the process of selection, is required to strictly
adhere to various instructions which have been given. In a given
case the violation of instructions may disrupt the process of
evaluation and selection process. Where the series of the question
booklet is not mentioned, the OMR is not capable of being
evaluated. If such a mistake has already been committed by a
candidate, there is no laid down system in the selection process to
allow such candidates to remove that defect in a particular
manner.
7. Learned counsel for the petitioners submits that the
respondents ought to have evolved process to allow the
petitioners and other candidates who committed defaults in
filling OMR sheets by correcting the same.
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8. We are afraid, such a blanket relaxation would completely
destroy the sanctity of the examination process. A proposition
that after the OMR sheets are submitted, it should be again
examined by some manual process or where OMR sheets are
rejected by the evaluation system, it should be allowed to be
corrected by the candidates, would completely derail the
selection process and it will not only inordinately delay the
process of selection but also raise suspicion, as such kind of
practice is susceptible to misuse.
9. A Division Bench of this Court in the case of Union of
India & Ors. vs. Jagdish Chandra Jat (supra) faced with similar
issue of non-compliance of instruction with regard to filling up
OMR sheets and relying upon Supreme Court decision in the case
of State of Tamil Nadu and others vs. G. Hemalathaa and
another in Civil Appeal No.6669/2019 decided on 28.08.2019
observed that the instructions issued are mandatory and have to
be strictly complied, as strict adherence to the terms & conditions
of the instructions is of paramount importance.”
Reference is also made to the judgment of Hon’ble Jharkhand
High Court in the matter of Aditya Isha Prachi Tirkey Versus Jharkhand
Public Service Commission reported as 2022 SCC Online Jhar. 28. The
relevant extract of the same is reproduced hereinafter below:
“7. Having heard counsel for the parties and considering facts
and circumstances of the case, this Court is of the considered
view that no case is made out for any interference by this Court.
The emphasis has been led to Annexure-2 series at page 21 of the
writ petition, which is similar to page 33 of the counter affidavit
(Annexure-C). From bare perusal of two documents, it appears
that last digit of roll number i.e. 8, the petitioner has wrongly
circled in the OMR sheet the digit 6. This fact also supports from
the document at Annexure-C of the counter affidavit. In that22 of 34
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document at Annexure-C it appears that instead of digit ‘8’, digit
‘6’ has been circled by the petitioner. In this context, it is relevant
to quote clause 4 of the advertisement which reads as under:-
“4. OMR (Optical mark recognition) answer sheet will be
processed electronically. As such invalidation of answer
sheet due to incomplete / incorrect filling / darkening of the
bubbles on OMR sheet, will be the sole responsibility of the
candidate. OMR Scanning machine will reject OMR sheet
in which Roll No and Booklet series are not properly and
correctly (in word or number or both as required)
darkened or fill up in OMR sheet).
8. Admittedly the petitioner has wrongly darkened the last
digit of her roll number and instead of digit 8, she has darkened
digit ‘6’, which is fault on her part and as per instruction in the
Admit Card, such mistakes on part of the candidate, cannot be
rectified by the Commission and according to the arguments
advanced by counsel for the JPSC, such correction would lead to
manipulation in the OMR Sheet. Thus, it is evident that the
conditions/ instructions mentioned in clause-4 of the Admit Card
have not been fulfilled by the petitioner herself and as such, case
of the petitioner has rightly been rejected by the Commission for
appearing in Mains Examination. Secondly, from the record it
appears that petitioner has obtained 140 marks only in totality
whereas the marks obtained by the last selected candidate under
the Scheduled Tribes category is 230. Thus, plea raised by the
petitioner is rejected on this score also. Petitioner cannot take the
plea to add marks of second paper of General Studies which
could not be evaluated or scanned by the OMR machine due to
mistake or laches on part of the petitioner herself by darkening
wrong roll number. At this stage this Court cannot direct the
Commission to correct the same because it would amount to
manipulation in the OMR Sheet. A candidate is supposed to23 of 34
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follow the instructions and such mistakes are not expected by the
aspirants appearing in the State Civil Service Examination. May
be the petitioner has not intentionally darkened digit 6 instead of
8, but sympathy has no place in the eyes of law. The law will
prevail in view of the terms and conditions as mentioned in the
Advertisement, Admit Card and that of the Rules framed by the
JPSC. The Hon’ble Apex Court in the case of Ram Vijay Singh &
Ors. State of Uttar Pradesh & Ors., reported in (2018) 2 SCC
357, wherein, taking into consideration its previous decisions,
including the one in Manish Ujwal’s case (2005) 13 SCC 744, the
law was laid down by the Hon’ble Apex Court as follows:-
“30.5 In the event of a doubt, the benefit should go to the
examination authority rather than to the candidate.
31. On our part we may add that sympathy or
compassion does not play any role in the matter of
directing or not directing re-evaluation of an answer sheet.
If an error is committed by the examination authority, the
complete body of candidates suffers. The entire
examination process does not deserve to be derailed only
because some candidates are disappointed or dissatisfied
or perceive some injustice having been caused to them by
an erroneous question or an erroneous answer. All
candidates suffer equally, though some might suffer more
but that cannot be helped since mathematically precision is
not always possible.”
9. If the contention of the learned Senior Counsel is accepted
regarding re-evaluation of the OMR sheet, it will amount to
opening flood gate and a blanket order has to be issued
regarding entertaining of those candidates, who have made
incorrect entry in violation of clause 4 of the terms and
conditions as mentioned in the admit card. This Court sitting
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under Article 226 of the Constitution of India cannot interfere in
such matters. No interference is warranted in this writ petition.”
Reference is also made to the judgment of Hon’ble Delhi High
Court in the matter of Pransh Singh Versus National Testing Agency &
Others reported as 2024 SCC Online Del. 5347. The relevant extract of the
same is reproduced hereinafter below:
10. Essentially, the grievance of petitioner is that a “stray
mark” put by him on the OMR sheet in response to question
number 188 has been accounted as a marked response, and the
response to question number 197 in the OMR sheet has not been
taken into account by the NTA, thereby resulting in loss of marks
to the petitioner in NEET (UG)-2024. The respondent, however,
relies on the instructions mentioned in the OMR sheet as well as
Clause 3.2.(b) of Information Bulletin to refute the claims of the
petitioner.
XXX XXX XXX
13. This Court is further of the opinion that the OMR sheet
contained clear, specific, pre-defined and pre-declared
instructions that “please do not make any stray marks on the
Answer Sheet. Incorrect Marks/Stray marks may be ready by the
OMR scanner”. This Court’s attention has also been drawn
towards Clause 3.2.(b) of the Information Bulletin, which clearly
mandates that in the event a candidate attempts more than 10
questions, only the first 10 attempted questions will be considered
for evaluation. This Court also takes note of the fact that as per
the guidelines, it is provided that there will also be negative
marking for Section B. Thus, since the petitioner had attempted
question numbers 186 to 192 (including question number 188)
and 194 to 196 in Section B, the 11th question being question
number 197 could not have been considered for evaluation.
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14. To sum up, this Court is of the opinion that every candidate
taking the exam, i.e. NEET (UG)-2024 was specifically and
clearly informed about the instructions in respect of the filling of
the OMR sheets, which has been reproduced hereinabove in
paragraph number 07. The original OMR sheet filled by the
candidate/ petitioner herein was also perused by this Court.
Considering the same, this Court is of the opinion that the present
petitioner was well-aware that in case he fills the circle against
the question, it will be scanned by the OMR reader/scanner, and
further that only the first 10 attempted questions will be
considered for the purpose of calculating the marks. As noted
above, when the original OMR sheet was produced before this
Court, which was also shown to learned counsel for the petitioner
for his satisfaction, this Court had noticed that the circle against
question number 188 was more than half filled, and thus, the
same was counted as “attempted” by OMR scanner. It is also to
be noted that every OMR sheet is individually scanned by two
scanners.”
Reference is also made to the judgment of this High Court in the
matter of Meena Kumari Versus State of Haryana and others reported as
2024 SCC Online P&H. 11239. The relevant extract of the same is
reproduced hereinafter below:
“2. As per stand taken in the written statement filed on behalf
of the Commission, the petitioner scratched/smudged answer to
question no.30 of Paper Code-A on the OMR Sheet. As per the
instructions issued to the examinees, in the event of
scratching/smudging of OMR Sheet, the same were liable to be
cancelled. Accordingly, the petitioner’s OMR Sheet was not
evaluated, and her candidature was rejected.
XXX XXX XXX
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4. Since the petitioner’s candidature was rejected on the
basis of clear instructions issued to the examinees not to
scratch/smudge OMR Sheet, which was undisputedly scratched
by the petitioner, no exception can be taken to the Commission’s
decision in rejecting her candidature.”
Reference is also made to the judgment of this High Court in the
matter of Sonu Versus State of Haryana and Others reported as 2022 SCC
Online P&H 1977. The relevant extract of the same is reproduced hereinafter
below:
“3. Pursuant to notice of motion having been issued as far
back as in 2019, reply has been filed on behalf of respondent
No.2, wherein a categoric stand has been taken that the
candidature of the petitioner stands rejected on account of the
fact that there was smudging on his OMR answer sheet.
XXX XXX XXX
6. In view of the categoric stand taken that the OMR sheet of
the petitioner was not evaluated on account of smudging, this
Court would find no ground to interfere especially in view of the
fact that there are specific instructions issued to the candidates
on the admit card itself. A perusal of instruction No.6 is
reproduced hereunder:-
“6. Candidates are warned not to fold, tear, destroy or
make any stray marks on the OMR Answer Sheets. Use of
Eraser, Nail, Blade, White Fluid/Whitener etc. to smudge,
scratch or damage in any manner the OMR sheet during
Examination is strictly prohibited. Candidature of
candidates using Eraser, Blade, Nail or White
Fluids/Whitener to smudge, scratch or damage the answer
Sheets shall be cancelled.”
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No other argument has been advanced nor any other judgment
cited by the counsel for the respective parties.
The question which arises for consideration of this Court is as to
whether an inadvertent failure on the part of a candidate in filling up the
bubbles for marking the booklet series would be a trivial error which can be
condoned or is a major lapse rendering his/her candidature liable to be rejected
with no opportunity. The terms and conditions relied upon by the HPSC thus
need to be examined. The same have already been extracted in the preceding
part of the judgment.
It is evident from a perusal of the judgments relied upon by both
the parties that the Courts have relied upon the necessity to preserve the
sanctity of the selection process while allowing or dismissing the respective
petitions. In circumstances where the cause had been trifle and having no
prejudicial impact on the sanctity of procedure for appointment to public
office or where such a lapse or omission is not detrimental to the final
outcome without doubting or eroding the faith of people in the sanctity of the
process.
It is also required to be kept in mind that rejecting a candidature
of a person is the extreme consequence of an omission and while being a
guardian of fairness of the selection process, the Court is also expected to
balance the aspirations of the competing candidates considering that public
employment is a scarce opportunity which is available occasionally. In such a
stage of anxiety laden competing pressure, a candidate may, at one point,
commit an oversight, an act/omission that is innocuous and having no
meaningful impact, but the consequence of that failure should not haunt a
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person for the rest of his life. Even though, in cases, where rejection of
candidature has been upheld to give finality to the selection process and to
avoid a perceptive doubt in public mind against revision of merit list,
however, the recent events have largely shown a repetitive trend of every final
result being revised over and over again.
Thus no undue over significance can be extended to an argument
that sanctity of selection process may be circumspect due to any revision at the
instance of a person aggrieved or that fatal consequence is the only outcome of
a lapse by a candidate, irrespective of its significance or magnitude.
In the above context and background, the matter is being
examined noticing that even though it has been set out in the instructions
issued to the candidates that they have to be carefully read and followed by the
respective candidates and it also prescribes that in the event of any omission or
discrepancy in filling up the roll number, question booklet series and question
booklet number, the same would render the OMR sheet liable for rejection.
The condition No.23 gives the reason for the same as that the original OMR
sheet is to be scanned by the computer, hence, the circles are to be
darkened/filled up completely and it should not be folded or damaged in any
manner by the candidate. The filling up of the question booklet series is only
for facility of an expedient evaluation of the OMR sheets as the computer is to
pick up the answer keys on the basis of the data filled in and pertaining to the
question booklet series, lest the final result may suffer from any discrepancy.
It is evident from reading of condition No.22 that it uses an
expression “will render the OMR sheet liable for rejection”.
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“Rendering the OMR liable for rejection”, has to be understood
correctly. “Liable”, as is defined in Black’s Law Dictionary, 8th Edition is an
adjective which means as under:
(1) Responsible or answerable in law; legally obligated.
(2) (of a person) subject to or likely to incur (a fee, penalty etc.).
Hence, liability to the extent of rejection of candidature is a
‘likely consequence’ and it may not be a compulsory/mandatory consequence.
The express “liable” thus implies a possibility or probability of incurring or
subjecting to a consequence and it may not be the only consequence. There is
thus an element of discretion which inheres in the expression ‘……liable for
rejection’. If the intent was to reject the candidature, the condition would have
been differently worded as would prescribe the consequences with no
possibility or probability of discretion. Thus the rejection of the answer
sheet/OMR sheet is not mandatory but is an empowering provision
authorizing the HPSC to reject candidature in a befitting case. The crucial
aspect however to be borne in mind by a Public Authority is as to whether the
error has the potential of compromising the sanctity of the process of selection
or eroding public faith in the process of selection.
It would be relevant at this juncture also to record that on a
specific question put to the counsel for the HPSC, he fairly conceded that a
mere failure on the part of a candidate in filling up the bubbles for identifying
the booklet series would not lead to any prejudice to the final outcome and it
does not have the potential of damaging or discrediting the entire result. He
also submits that the OMR sheets have all along been with HPSC and the
attempt of questions is in no way altered and that on filling up the booklet
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series bubbles, the computerized evaluation can be done expeditiously and that
the series can be validly determined without any chance of foul play. The fair
stand taken by the counsel for the HPSC is appreciated by this Court.
Given the aforesaid aspects and considering it from the
perspective that the counsel for the HPSC also does not express any
apprehension of any foul play, fraud, misrepresentation or tampering of the
final result or any possibility of vitiating of the selection process or creating
doubts with respect to the sanctity of the selection process, this Court feels
that such a trivial omission is required to be resorted to its extreme only in
befitting circumstances, where the omission would have a semblance of
vitiating the selection process or creating reasonable doubts and apprehensions
in the minds of the general public that the final outcome of the selection
process is likely to be severely compromised. None of the said circumstances,
however, are alleged to exist in the present case.
In the said factual and undisputed background, it would be
apposite to refer also to the judgments relied upon by the counsel for the
HPSC.
On perusal of the same, I find that the same would not be
applicable to the fact scenario of the present case. Insofar as the judgment of
Hon’ble Supreme Court in the matter of G. Hemlatha (supra) is concerned,
the candidate therein had underlined the answer sheet with a pencil at several
places which was in violation of the instructions issued by the Commission.
The object behind prescribing such condition is to ensure that the answer sheet
is not identified at any later point of time when secret coding is done and
identity is concealed. Apparently, no such instance, which has the probability
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of vitiating the selection process or creating reasonable apprehension about the
sanctity thereof, arises in the present case.
Similarly, the judgment of the Punjab and Haryana High Court in
the matter of Meena Kumari and Sonu (supra) would also not be applicable
since the same are also the instances of smudging on the OMR sheet, which
could have the potential of identification of the paper book.
So far as the judgments of the Hon’ble Rajasthan, Jharkhand and
Delhi High Courts are concerned, while giving due deference to the same, I
am of the opinion that the said judgments have not examined the final impact
of such an omission under a normative law and have merely relied on a pure
theory by a plain reading of the clause. I find that the assessment of similar
clause as undertaken by the High Court of Allahabad as well as the High
Court of Gujarat is based upon the purposive reading.
A Court of Law, while applying terms and conditions of a clause,
is enjoined upon to also analyze and assess the final impact thereof.
Undoubtedly, securing a public employment is a dream for a common person
and the failure to compete in the same solely due to certain inadvertent
omissions would crush the entire career prospects of a candidate, more so, it is
only occasionally that advertisements for such public employment are issued.
Hence, enforcement of such extreme power should be made once there is a
reasonable doubt or apprehension of mischief in so doing, but not where a
mischief is clearly ruled out and that the effect of the omission/error would
have no reflection on the sanctity or security of the process of selection.
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Further, so far as judgment of Delhi High Court in the matter of
Pransh Singh (supra) is concerned, the same is not applicable to the facts of
the present case.
Having considered the arguments by the counsel for HPSC on all
the aforesaid facts, I find that the adaptation of the view taken by the HPSC
for rejection of the candidature of the petitioners No.1 and 2 above on the
ground of failure of the petitioners to fill up the bubbles for the booklet series
cannot be upheld.
The counsel for the HPSC has also fairly stated that no prejudice
or irreparable loss is likely to occur to any other person, who being eligible
has already competed in the process of selection alongwith the petitioners.
For the reasons noticed above, the present writ petition is allowed
qua the petitioners No.1 and 2 namely Renu Sharma and Preeti Gehlawat
respectively. The HPSC is accordingly directed to scan the OMR sheets of the
said petitioners. It is made clear that only in the event of the petitioners
securing the prescribed qualifying marks in the evaluation of the OMR sheets
for the screening test, would they be eligible to participate in the further
selection process.
Learned counsel for the HPSC contends that for filling the
bubbles for the booklet series, petitioners would be required to visit the office
of the HPSC so that their OMR sheets can be scanned.
Learned counsel for the petitioners has no objection to the same.
Accordingly, the petitioners No.1 and 2 are directed to appear in
the office of the Secretary, Haryana Public Service Commission on or before
28.01.2025, whereupon the HPSC shall carry out the evaluation of the OMR
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sheets for screening of the petitioners and to ascertain the eligibility of the
petitioners to appear in the Subject Knowledge Test. The petitioners shall also
carry their Admit Cards and their own copy of OMR sheets for facility of
Commission, if so required.
Needless to reiterate that the petitioners would not be eligible to
participate in the further process of selection on their failure in clearing the
minimum bench marks/cut off marks prescribed by the HPSC for candidates
to appear in the Subject Knowledge Test.
The result produced today in a sealed cover by the counsel for the
HPSC during the course of hearing has been resealed and returned.
Petition stands allowed accordingly.
All other misc. application(s), if any, also stand(s) disposed of
accordingly.
(VINOD S. BHARDWAJ)
JANUARY 20, 2025. JUDGE
rajender
Whether speaking/reasoned : Yes/No
Whether reportable : Yes/No
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