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2023 DIGILAW 1261 (GAU)

Udit Saikia S/o Karuna Saikia v. State of Assam

2023-10-10

SANJAY KUMAR MEDHI

body2023
JUDGMENT : SANJAY KUMAR MEDHI, J. 1. Heard Shri F. Khan, learned counsel for the petitioner. Also heard Shri T.J. Mahanta, learned Senior Counsel assisted by Ms. P. Sarma, learned counsel appearing for the APSC who had also produced the instructions including the original OMR sheets of the petitioner. Shri S.R. Baruah, the learned State Counsel is also present. 2. Pursuant to the order dated 06.10.2023, Shri Mahanta, learned Senior Counsel has obtained the written instructions. Considering the facts and circumstances and the instructions received, the writ petition is taken up for disposal at the motion stage. 3. The petitioner was an aspirant for the post of Assistant Engineer (Civil) under the PWD which was notified vide an advertisement dated 15.03.2023 for filling up 244 nos. of posts. The examination had consisted of an OMR based Screening Test followed by a viva-voce. It is the case of the petitioner that in the written examination which was OMR based, as per his assessment, he should have scored 121.5 marks. However, persons securing marks of 114 and 112 have been selected for interview and therefore, the petitioner has not been dealt fairly and transparently. 4. On the other hand, Shri Mahanta, the learned Senior Counsel has placed before this Court the written instructions including the OMR sheet of the petitioner in a sealed cover. It is submitted that the exclusion of the petitioner from the shortlisted candidates is not because of the projection made by the petitioner but because of the fact that the petitioner did not follow the guidelines meant for the candidates while filling up the OMR sheet. It is the specific case of the Commission that there is a requirement to darken the Roll No. , Test Booklet No. and Series No. and so far as the Series is concerned, such guidelines were not followed by the petitioner as there is no darkening of the Series. The aforesaid submission made on behalf of the Commission is also found substantiated by the original OMR sheet of the petitioner which has been placed on record. 5. Shri Mahanta, the learned Senior Counsel has also placed reliance upon the following case laws wherein it has been laid down that it is a mandatory requirement for following the guidelines by the candidates in an examination conducted on the basis of OMR sheet. 5. Shri Mahanta, the learned Senior Counsel has also placed reliance upon the following case laws wherein it has been laid down that it is a mandatory requirement for following the guidelines by the candidates in an examination conducted on the basis of OMR sheet. (i) State of Tamil Nadu vs. G. Hemalathaa and Another, (2020) 19 SCC 430 (ii) APSC and Another vs. Izaz Yusuf Ahmed and Another, 2019 (3) GLT 754 (iii) Aatreyee Sharma vs. State of Assam and Others in W.P. (C) 3801/2023, dated 27.06.2023 6. In the case of G. Hemalathaa (supra), the Hon’ble Supreme Court was considering a matter pertaining to instructions to be followed by a candidate appearing in a recruitment process. In the said case, though the High Court had come to a conclusion that there was infraction of the instructions, a sympathetic consideration was made on humanitarian grounds. However, the Hon’ble Supreme Court did not approve the said approach and has observed as follows: “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. ........... ........... 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.” 7. In the case of Izaz Yusuf Ahmed (supra), a Division Bench of this Court was considering a matter of identical nature wherein the answer sheets were in the OMR format and the series was also required to be darkened which was not done. The learned Single Judge though opined that the mistake was of the candidates, the same was unintentional and was a bona-fide mistake and further that the candidates could not gain anything by such non-darkening. The learned Single Judge though opined that the mistake was of the candidates, the same was unintentional and was a bona-fide mistake and further that the candidates could not gain anything by such non-darkening. The said view was however disapproved by the Hon’ble Division Bench and by relying upon a decision of the Hon’ble Supreme Court, the following has been laid down: “12. A similar question had fallen for consideration before the Hon'ble Supreme Court in the case of State of Uttar Pradesh and Others vs. Upendra Nath Yadav, Civil Appeal No. 3899/2019 and SLP (C) No. 35187/2017. In the aforesaid case, the candidate had appeared for Uttar Pradesh Civil Police and Platoon Commander Direct Recruitment Examination and he was given a Booklet having Code SPU02 No. 795933 of the Series-C, but he did not fill up the Booklet Series in the prescribed box of OMR Sheet. The candidate was not selected as he did not fill in the details in the prescribed box and his result was not declared on account of the said default. A writ petition having been filed by the candidate, a Single Judge of the High Court of Uttar Pradesh directed the respondents therein to evaluate the OMR Sheet of the candidate and the said decision was affirmed by the Division Bench. The State of Uttar Pradesh filed Special Leave Petition before the Hon'ble Supreme Court. It was contended on behalf of the State of Uttar Pradesh that it had been specifically provided in the instructions given to the candidates that the candidate must fill up his Roll number and Question Paper Series in the Answer Sheet at the specified place failing which the Answer Sheet would not be evaluated and zero mark would be awarded. As the required box for Question Booklet Series was not filled up by the candidate, the OMR Sheet of the writ petitioner was not evaluated by the computer machine. Accepting the arguments in the above background of facts, the Hon'ble Supreme Court set aside the judgments of the High Court. 13. The ratio of the aforesaid case applies with all force to the present factual matrix. The entire examination process was designed on evaluation of the OMR Answer Sheets by computer and, therefore, in such a scenario, human intervention is not permissible. 14. 13. The ratio of the aforesaid case applies with all force to the present factual matrix. The entire examination process was designed on evaluation of the OMR Answer Sheets by computer and, therefore, in such a scenario, human intervention is not permissible. 14. In view of the above discussion, we are of the considered opinion that the impugned judgment of the learned Single Judge cannot be sustained and, accordingly, the same is set aside and quashed.” 8. In the case of Aatreyee Sharma (supra), this Court was again considering a similar situation involving darkening in the OMR sheet. By relying upon the case of G. Hemalathaa (supra) and also the case of Izaz Yusuf Ahmed (supra), relief was denied to the petitioner in that case. 9. Therefore, following the principles laid down by various judicial pronouncement, this Court is of the view that the requirement for correctly filling up the OMR sheet being mandatory in nature. Further, such verification and evaluation being done through the computer, the requirement of darkening of the relevant circles cannot be held to be a mere technical defect. Further, when such verification is done through the computer, in absence of such darkening of any of the boxes containing various aspects of a candidate and the answer script, the identity of the candidate would not be discernible. 10. In view of the above, this Court is of the opinion that no case for interference is made out and accordingly, the writ petition is dismissed. 11. The written instructions dated 06.10.2023 is made part of the records. 12. The OMR sheet, in original is returned back to the learned counsel for the Commission.