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2013 DIGILAW 272 (PAT)

Varun Kumar v. Bihar Staff Selection Commission

2013-02-28

MIHIR KUMAR JHA

body2013
ORDER Heard counsel for the parties. 2. The prayer of the petitioner in this writ application reads as follows: “To direct the respondents Commission to accept the candidature of the petitioner on the basis of marks obtained in the Mains Examination conducted under Advertisement No. 110/2010 for conducting graduate level first combined competitive examination 2010 and issuance of further declaration that performance in the examination with the help of a writer duly allowed at the examination centre with videography etc. as safeguards, it is not open to the commission to reject the candidature on any technical ground any more.” 3. Mr. Anand Kumar Ojha, learned counsel for the petitioner, has submitted that when the petitioner in terms of Advertisement No. 110/2010 was allowed to appear in the competitive examination on 27.1.2013 with the help of a writer, the authorities of Bihar Staff Selection Commission (hereinafter referred to as „the Commission?) cannot disqualify the petitioner from the said competitive examination only because he had taken assistance from a writer. In this regard he has also submitted that the petitioner had sustained a fracture in his right hand on 9.1.2013 and was hospitalized from 13.1.2013 to 19.1.2013 and as such, he was not in a position to use his right hand because of the plaster placed on the facture after operation was done on 16.1.2013. 4. Mr. Ojha has further explained that since the petitioner was not in a position to write anything by use of his right hand, his natural hand, nor could even he do the exercise of blackening any circle in OMR sheet, he had requested the authorities of the Commission to take aid of a writer for appearing in the final written examination but the authorities of the Commission had refused to give an audience to the petitioner and in such circumstances, he had requested the Centre Superintendent for allowing his niece, a student of Class V, to be allowed to assist the petitioner in the examination. Mr. Ojha has accordingly submitted that when the Centre Superintendent had allowed use of writer to assist the petitioner in the competitive test and after the petitioner was allowed to take examination with the help of the writer, his result could not have been withheld. Mr. Ojha has accordingly submitted that when the Centre Superintendent had allowed use of writer to assist the petitioner in the competitive test and after the petitioner was allowed to take examination with the help of the writer, his result could not have been withheld. In this regard it is the case of the petitioner that he came to know from the authorities of the Commission that in the meeting the Commission had decided to exclude the candidature of the petitioner on the ground that he had appeared in the examination with the help of a writer without prior permission of the Commission. 5. Learned counsel for the Commission, on the other hand, has submitted that in the Rules made by the Commission for holding the examination there was no provision for taking help of a writer. In this regard he has referred to the instructions given to the candidates on the Admit Card, as contained in Annexure 3. He has also referred to OMR sheet and in particular to the declaration which was sought to be filled up in own handwriting in Hindi language. According to the learned counsel for the Commission as the petitioner did not comply the requirements, his candidature itself was cancelled. In this regard he has also been stated by him that the Centre Superintendent had no authority or power to allow the petitioner to take assistance of a writer in the competitive examination without prior permission of the authorities of the Commission. 6. In the considered opinion of this Court it is the nature of the examination and its Rules and Regulation which will make material difference. Normally use of a writer in a subjective examination is permitted under the relevant Rules. A sick candidate in fact is being allowed to appear in Matriculation Examination or University Examination if the authorities are satisfied that the examinee is really sick and unable to write the answer the services of a Writer is made available by the authorities themselves who would in no way be influenced in transcripting the answers given by the candidate. That, however, is done usually in the academic examination but when a question of competitive examination having prescribed Rules would arise the instruction issued for the same will have to be strictly followed. That, however, is done usually in the academic examination but when a question of competitive examination having prescribed Rules would arise the instruction issued for the same will have to be strictly followed. It is because of this reason that use of OMR answer sheets have now been adopted in the competitive examination. In such OMR sheet in order to verify the genuineness of the students a fixed prescribed passage is given which has been copied by the candidate without fail and in fact the candidate who would not copy it down, is not even entitled for being marked in that examination. This aspect of the matter stands settled by this Court in an order dated 18.1.2013 in C.W.J.C.No. 14253/2012 (Dhiraj Kumar v. the State of Bihar & ors.) wherein it was held as follows: “ Having heard learned counsel for the parties, this Court is of the considered opinion that once it becomes an admitted fact that the petitioner had not complied the mandatory requirement of the important instruction given on the OMR sheet and had not at all filled in the passage portion provided on the OMR sheet in his own handwriting, he would not be entitled to claim for being given marks for the answers given by him. From the photocopy of OMR sheet of the petitioner Annexure 2 to the counter affidavit, it is absolutely clear that the petitioner had not at all filled in the requisite space by the reproducing the passage in his own handwriting and had merely put his signature in Hindi and English. From the photocopy of OMR sheet of the petitioner Annexure 2 to the counter affidavit, it is absolutely clear that the petitioner had not at all filled in the requisite space by the reproducing the passage in his own handwriting and had merely put his signature in Hindi and English. Once the petitioner therefore had not done so, he had to undergo to consequence which could extend even up to cancellation of his candidature itself as was also mentioned in the same page of the OMR sheet, reading as follows:- ^^vko';d@ IMPORTANT uhps fy[kh iqjs xa|ka”k dks uhys@dkys IokaV dye ls viuh gLrfyfi esa iw.kZ :i ls fy[kdj viuk iwjk gLrk{kj fgUnh rFkk vaxzsth eas fu/kkZfjr LFkku ij djsaA gLrfyfi tkWp ds fy, ;g vfuok;Z gS vkSj ,slk ugha djus ij vkids mrj i=d @mEehnokjh dks jn~n dj fn;k tk;sxkA** In that view of the matter, when there is also no denial to this aspect by the petitioner by filing any rejoinder to the counter affidavit and in fact, there could have been none, in view of production of the clinching evidence namely the photocopy of the OMR sheet of the petitioner in the counter affidavit this Court will have no difficulty in holding that the respondents had not committed any error in not awarding the marks in the said OMR sheet. This very issue has also been considered decided by the learned Single Judge of this Court at length in an order dated 7.10.2010 in CWJC No. 15986 of 2010 (Abhishek Kumar Adig vs. The Chairman, Bihar Combined Entrance Competitive Examination & ors.)” 7. In the present case also the OMR answer sheets, as contained in Annexure 6, would bear it out that it was clearly mentioned therein that the examinee had to copy a passage of declaration (Ghosana) in Hindi language in his or her own running handwriting and the consequence of not doing so was also mentioned in the following terms: ^^mijksDr ?kks"k.kk dks ckWy isu ls viuh gLrfyfi esa cxy esa fy[kdj viuk iwjk gLrk{kj fgUnh rFkk vaxzsth eas fu/kkZfjr LFkku ij djsaA ;g vfuok;Z gS vkSj ,slk ugha djus ij vkids mRrj&i=d@mEehnokjh dks jn~n dj fn;k tk,xkA** 8. It is however admission of the petitioner himself in paragraph no.14 of the writ petition that he did not/could not write the passage of OMR sheet in his own handwriting inasmuch he has in this regard stated that:- “The help of the writer was well known to the invigilator also. It is stated that even the declaration on the OMR answer sheet was written in the handwriting of the said child.” (underlining for emphasis) 9. The aforesaid admission coupled with the own case of the petitioner that he was not in a position to use his right hand for writing would be sufficient to show that the petitioner had not carried out the instructions given on the OMR answer sheet, rather it was writer the child accompanying the petitioner who had written the same in her handwriting. In view of above it would matter little and in fact would be of no consequence whether the petitioner ought to have been not allowed to use the writer by the Centre Superintendent, inasmuch as an answer given in the OMR sheet itself does not envisage use of writer. The unauthorized act on the part of the Centre Superintendent, therefore, would not bind the Commission and the decision of the Commission to scrap the candidature of the petitioner does not suffer from any error, especially when the petitioner has tried to mislead this Court by producing a fabricated back portion of the Admit Card containing his signature in both sitting in English and Hindi shown to have been also authenticated by the Invigilator whereas in the OMR sheet produced by the petitioner himself the column meant for the candidate?s signature in English and Hindi has been left vacant. In view of the fact that the petitioner had been able to write before the Invigilator his signature as shown in the Admit Card, his plea of injury in the hand will itself raise a question mark and if that document (Annexure 3) the back portion of the Admit Card was not filled up before the Invigilator, his entire story of being allowed by the Centre Superintendent would also become doubtful. 10. 10. This Court has also minutely perused the signature of the Invigilator on the OMR answer sheet wherein in the first sitting the said Invigilator "Sarojini" who had put her signature on the OMR sheet without there being signature of the petitioner either in English or Hindi as required in the OMR answer sheet satisfactory in the Admit Card the signature of the petitioner both in English and Hindi. Similarly, though there is a great variation in the signature of the Invigilator in the second sitting in the subject of General Knowledge, inasmuch as in the OMR sheet the signature of the Invigilator is in the name of 'Madhu Kumari' whereas in the Admit Card the name of the Invigilator cannot be deciphered but then it becomes also clear that even before the said invigilator 'Madhu Kumari' the petitioner had not put his signature either in English or in Hindi. 11. In view of above, it would be clear that the petitioner has not approached this Court with clean hands and the story of being allowed to use of writer by the Centre Superintendent would also not inspire confidence. 12. None-the-less the Centre Superintendent had no such power or authority to do so especially when the Admit Card of the final examination, as contained in Annexure 3, and the instruction given in the OMR sheet had clearly indicated that in case of candidate not following the instruction the answer sheet is liable to be rejected. In fact the instructions given in the Admit Card and the OMR sheet nowhere envisages use or help of a writer in the competitive examination conducted by the Commission. 13. It has to be kept in mind that the competitive examination in question had a multiple choice in objective type questions and blackening of space meant in the OMR sheet against a correct answer was to be made by the candidate himself. 13. It has to be kept in mind that the competitive examination in question had a multiple choice in objective type questions and blackening of space meant in the OMR sheet against a correct answer was to be made by the candidate himself. A candidate in fact could not have used a writer and therefore, the submission of the learned counsel for the petitioner that usually writer is allowed in all examination when a candidate is not in a position to write himself or herself, cannot be made applicable to competitive test having a clear instruction as with regard to not only filling the instruction in own handwriting, putting the signature in the OMR answer sheet both in Hindi and English and blackening the space meant for correct answer in multiple choice objective type answer books. Such instructions have been held to be mandatory even in the judgment of the Apex Court in the case of Karnataka Public Service Commission v. B.M.Vijaya Shankar, reported in AIR 1992 SC 952 , wherein it was held as follows: “3. Such instructions are issued to ensure fairness in the examination. In the fast deteriorating standards of honesty and morality in the society the insistence by the Commission that no attempt should be made of identification of the candidate by writing his roll number anywhere is in the larger public interest. It is well known that the first page of the answer book on which roll number is written is removed and a fictitious code number is provided to rule out any effort of any approach to the examiner. Not that a candidate who has written his roll number would have approached the examiner. He may have committed a bona fide mistake. But that is not material. What was attempted to be achieved by the instruction was to minimize any possibility or chance of any abuse. Larger public interest demands insistence of observance of instruction rather than its breach.” 14. The same view was taken by a Division Bench of this Court in the case of Bihar Public Service Commission & anor. v. State of Bihar & ors., reported in 2002(2) PLJR 105 , where a candidate had written answers to some questions outside the brackets provided for answers. The same view was taken by a Division Bench of this Court in the case of Bihar Public Service Commission & anor. v. State of Bihar & ors., reported in 2002(2) PLJR 105 , where a candidate had written answers to some questions outside the brackets provided for answers. When his answer sheet was cancelled in the paper of E.N.T. and a challenge was made before this Court, the Division Bench of this Court had held that: “The violation of a condition or instruction of an examination provided for a fair examination was sufficient to cancel the candidature and it was wholly relevant that the bonafides of the students was not in question.” 15. In view of the aforementioned discussions, this Court does not find any error in the decision taken by the authorities in rejecting the candidature of the petitioner on account of use of writer in the aforementioned competitive examination. 16. That being so, this application is wholly misconceived and is accordingly dismissed.