The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No.19655 OF 2023 (An application under Articles 226 and 227 of the Constitution of India) Santosh Khora … Petitioner -versus- State of Odisha and others … Opposite Parties Advocates appeared in the case through hybrid mode: For Petitioners : Mr.Nihal Rath, Advocate -versus- For Opposite Parties : Mr.S.Das, A.G.A. --------------------------------------------------------------------------- CORAM: JUSTICE SASHIKANTA MISHRA JUDGMENT 22.9.2023. Sashikanta Mishra,J. The Petitioner has filed this Writ Petition with the following prayer; Page 1 of 13 in terms of “It is therefore, most humbly prayed that this Hon’ble Court may be pleased to admit the writ application, issue rule Nisi calling upon the Opp. Parties to show cause as to why the prayer s made hereunder be not allowed, upon showing insufficient cause no cause make the said Rule absolute, Issue writ/ writs in the nature of; (i) Mandamus directing the Opp. Parties to allow the petitioner to participate in the selection process and to appear in the physical verification test the advertisement under Annexure-3 series by declaring the decision of Opp. Party no.3 under Annexure-8 disqualifying the candidate of the petitioner on the ground of incomplete or inappropriate OMR sheet" and the order of rejection passed by Opp. Party No.3 dtd. 7.6.2023 under Annexure-14 as illegal arbitrary and unconstitutional and to quash the same. ii. And to direct the Opp. Party no.3 to accept the candidature of the petitioner as a selected candidate in the written examination and to take cognizance of the marks secured by him at the time of further examination and preparing final merit list. iii. And/or may pass such other writ/writs, order/orders, direction/directions as this Hon’ble Court may think fit and proper for the ends of justice. And for this act of kindness the petitioner as in duty bound shall ever pray.” 2. The brief facts of the case are that the Petitioner belongs to the Scheduled Caste and duly registered his name in the Employment Exchange after completing his +2 Examination. On requisition submitted by the Director General and Inspector General of Police, Odisha (Opposite Party No.2), the State Selection Board of Odisha Police (Opposite Party W.P.(C) No. 19655 of 2023 Page 2 of 13 No.3) published an advertisement on 26th December, 2022 for recruitment of 4790 Constables (Civil) in Odisha Police. The Petitioner being eligible submitted his application online and an Admit Card was issued indicating the date of written examination on 26th February, 2023. On the date of the examination all the candidates were provided with OMR sheets with instructions to fill up the Roll Number numerically and to darken the correct circles corresponding to the numbers. The Petitioner indicated his Roll Number in figures correctly, but while darkening the required circles, he inadvertently darkened Circle No.4 instead of Circle No.5. He realized his mistake immediately and brought it to the knowledge of the Invigilator, who was of the opinion that the wrong circle having been darkened partially is negligible and therefore, did not replace the OMR Sheet since the correct circle had also been darkened. The Petitioner thereafter answered the questions and as per his own assessment he ought to have been awarded 47.5 out of 100 marks. He was however, informed by way of a W.P.(C) No. 19655 of 2023 Page 3 of 13 notice published by the State Selection Board in its Website that he had been disqualified for ‘incomplete or inappropriate of OMR sheet’. According to the Petitioner, candidates of S.C. (Male) category securing 36 marks have been selected to appear in the subsequent test, but the Petitioner was disqualified only on the technical ground as indicated above. The Petitioner therefore approached this Court in W.P.(C) No.9714/2023 challenging his disqualification. By order dated 10th May, 2023, a coordinate bench of this Court disposed of the Writ Petition granting liberty to the Petitioner to submit a representation before the State Selection Board with further direction to the Board to consider the same. The Petitioner submitted his representation on 24th May, 2023, but the same was rejected by Opposite Party No.3 by order dated 7th June, 2023. Assailing the rejection of his representation, the Petitioner has approached this Court in the present Writ Petition seeking the aforementioned relief. W.P.(C) No. 19655 of 2023 Page 4 of 13 3. A counter affidavit has been filed on behalf of the Opp. Parties refuting the averments made in the Writ Petition. It is stated that because of wrong entry made by the Petitioner of his Roll Number on the OMR sheet, the OMR scanning machine could not read the Roll Number and therefore, it could not be evaluated by it. He was therefore, rightly invalidated. It is further stated that Clauses 4 to 8 of the Instructions on the OMR sheet provides specific instructions to the candidates to fill up the OMR answer sheets, but the Petitioner did not comply with the same. It is also stated that the Petitioner cannot take advantage of the mistake, if any, committed by the Invigilator. Since all the candidates have correctly followed the instructions except the Petitioner, he was rightly disqualified. As regards the technical ground of rejection, it is stated that the Petitioners’ case cannot be treated as an isolated one and if ignored, it may allow all such applicants who have committed mistakes thereby leading to unnecessary litigation. W.P.(C) No. 19655 of 2023 Page 5 of 13 4.
Legal Reasoning
Heard Mr. Nihal Rath, learned counsel for the Petitioner and Mr. S. Das, learned Addl. Government Advocate for the State. 5. Mr. Rath submits that the bonafide mistake committed by the candidate cannot stand on the way of his participation in the recruitment test as the same cannot signify his lack of merit. It was an inadvertent error, which the Petitioner could not rectify because of the advice given by the Invigilator. Had the mistake not occurred the Petitioner having secured 47.5 marks as per his own assessment would have been allowed to participate in the subsequent tests. The authority concerned has rejected his representation on several unacceptable reasons questioning the Petitioner’s merit and integrity, which is not permissible. 6. Mr. S. Das, learned Addl. Government Advocate, argues that there being clear instructions given to all the candidates for filing up the necessary boxes/circles in the OMR sheet, the Petitioner should have followed the same strictly. The recruitment test W.P.(C) No. 19655 of 2023 Page 6 of 13 was conducted using OMR scanning machine only to ensure transparency and to rule out malafides. The Petitioner’s mistake in filling up his Roll Number correctly goes to the root of the matter and therefore, he was rightly disqualified. Further, on the existing facts there was nothing for the authority to consider while disposing of his representation and therefore, the same was rightly rejected. 7. The facts of the case are not disputed inasmuch as the Petitioner being a S.C. category candidate had applied pursuant to the advertisement issued on 26th December, 2022 and also appeared in the written test held on 26th February, 2023. Copy of the OMR sheet, enclosed as Annexure-5 reveals that the Petitioner entered his Roll Number in the appropriate box as 2400094459. He correctly blackened the circle as 2400094459. However, there is a slight blackening of the circle meant for ‘4’ just above the blackened circle of ‘5’. The Invigilator has mentioned the Roll Number in the appropriate box as 2400094459. It is not the case W.P.(C) No. 19655 of 2023 Page 7 of 13 of the Opposite Parties that the Petitioner’s Roll Number is not 2400094459 but something else. The only discrepancy, which is visible to the naked eye is a slight blackening almost in the nature of a dot in the circle meant for figure ‘4’. In the instructions given for filling the OMR answer sheets the correct and wrong methods of blackening the circles have been pictorially depicted as per which a dot in a circle is a wrong method. There is thus, no doubt that the Petitioner had wrongly blackened a small portion of the circle meant for ‘4’ and also blackened the full circle meant for the figure ‘5’. It is stated that because of such wrong depiction the OMR scanning machine could not correctly read the OMR sheet. This is an acceptable contention. However, it is the specific case of the Petitioner that he had done so inadvertently and immediately upon realizing his mistake he brought it to the notice of the Invigilator with request to issue him a fresh OMR sheet. The Invigilator is said to have taken the matter lightly on the supposition that it was a negligible mistake. This is a fact that cannot be W.P.(C) No. 19655 of 2023 Page 8 of 13 correctly ascertained in the absence of any reply by the Invigilator. Fact remains that the OMR sheet was not in order. 8. The question that now falls for consideration before this Court is, whether such a mistake can disqualify the candidate if he is otherwise qualified on merit. Reading of the impugned order of rejection of the Petitioner’s representation by the ADGP-cum- Chairman State Selection Board suggests that the mistake has been blown out of proportion so much so that the Petitioner has been held unfit to occupy a responsible position of a Constable in Government Service. It is stated that public interest is to select someone who is ‘capable, rule wise knowledgeable, emotionally stable and quick in decision making’. On such basis it has been inferred that when the candidate does not follow the rule at the very initial step of appearing in the examination as a potential candidate for the post of Constable then the question that would arise is as to what public interest he would W.P.(C) No. 19655 of 2023 Page 9 of 13 serve, if selected, and thus it has been held to be not a small mistake but a major mistake for not paying attention to the instructions on OMR sheet as well as Invigilator. 9. This Court finds it difficult to comprehend as to how such a bonafide mistake on the part of a candidate could lead to such inference about his capabilities and proficiency including emotional stability. It is obvious that while considering the representation of the Petitioner the concerned authority, instead of deciding whether on the face of such mistake the Petitioner could be allowed to participate further in the recruitment test, appears to have greatly exceeded his brief by making the aforementioned observations about the Petitioner’s capabilities, knowledge and emotional stability including decision-making activity. In doing so, the authority appears to have ignored the fundamental principle that when technical considerations are pitted against substantial justice, the cause of the latter W.P.(C) No. 19655 of 2023 Page 10 of 13 should always be advanced. Reference may be had in this regard to the decision rendered by the Privy Council in the case of Dal Singh vs. The King Emperor; AIR 1917 PC 25 and Collector Land Acquisition, Anantnag vs. Mst. Katiji and others; AIR 1987 SC 1353. It is needless to mention that in the instant case, but for the inadvertent mistake, the Petitioner would have got a right to further participate in the recruitment tests provided he had secured the qualifying marks. In other words, this is something that affects the right of livelihood of the Petitioner which is included in the right to life guaranteed under Article 21 of the Constitution. 10. Thus, this Court is of the considered view that for a mistake as minor as the one committed by the Petitioner, he cannot be thrown out of the recruitment process if he is otherwise meritorious. Moreover, this is a case where the mistake is sought to be condoned not to give appointment to the Petitioner but only to permit him to appear in the further recruitment test provided W.P.(C) No. 19655 of 2023 Page 11 of 13 he is found to have qualified in the written test. As such, no prejudice can be said to be caused to the opposite party-authorities by condoning such mistake. 11. Thus, from a conspectus of the analysis of the facts and law involved in the lis, this Court holds that the mistake committed by the Petitioner in mentioning his Roll Number in the OMR answer sheet should have been condoned. Further, the grounds on which the representation of the Petitioner has been rejected are not conscionable in law for the reasons indicated earlier. The Petitioner is therefore, held entitled to the relief claimed. 12. In the result, the Writ Petition is allowed. The impugned order of rejection of the Petitioner’s representation under Annexure-14 is hereby quashed. Since one post of Constable has been directed to be kept vacant as per interim order passed by this Court earlier, the Opposite Party No.3 is directed to consider the marks secured by the Petitioner in the written examination and if he is found to have qualified by W.P.(C) No. 19655 of 2023 Page 12 of 13 securing more marks than the last person so selected, be asked to appear in the further tests in the recruitment process and the final merit list be prepared accordingly. ………..…….……………. Sashikanta Mishra, Judge Ashok Kumar Behera Signature Not Verified Digitally Signed Signed by: ASHOK KUMAR BEHERA Reason: Authentication Location: High Court of Orissa, Cuttack Date: 03-Oct-2023 11:48:03 W.P.(C) No. 19655 of 2023 Page 13 of 13