# Manoj Kumar & Ors v. State of U.P. & Anr

- **Citation:** (2020) 8 ILRA 74
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-02-14
- **Case number:** Writ-A No. 20396 of 2019
- **Bench:** Surya Prakash Kesarwani
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/manoj-kumar-ors-v-state-of-u-p-anr-45891
- **Pages:** 11

## Headnote

A. Service Law- The Uttar Pradesh
Secondary Education Services Selection
Rules, 1998: Rule 12(3)- U.P. Secondary
Education Service Selection Boards Act,
1982-
Sections
3,
9,
34(2),
35-
Recruitment/Selection - Bonafide and
unintentional mistake, in 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. (Para 16)

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 u/R 12
of the Rules, 1998. (Para 10, 18)

In view of Rule 12(3) of the Rules, 1998, the
Board cannot refuse to evaluate answer sheet
of a candidate (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), 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. (Para 15)

B. The instructions given in the OMR
answer sheets cannot be made basis to
refuse to evaluate answer sheets of the
petitioners merely on the ground that
they marked circles of one or two
questions of a subject other than the
two subjects opted by them in Part -I of
the OMR answer sheet. The mistake
committed by petitioners is a minor human
error. They are merely claiming for evaluation
of answers to the questions of the two
subjects opted by them in Part-I of the OMR
answer sheet. The answers marked by them
in
one
or
two
circles
of
another
section/subject (other than the opted two
subject), can neither be evaluated nor the
petitioners are claiming its evaluation which
are merely liable to be ignored. (Para 19, 20)

Writ
petitions
disposed
off
with
directions.
(E-4)
8 All. Manoj Kumar & Anr. Vs. State of U.P. & Anr.
75
Precedent followed:

## Text

74 INDIAN LAW REPORTS ALLAHABAD SERIES

33. Despite repeated query, learned
Standing Counsel could not dispute about
the fact that punishment imposed upon
petitioner
for
non-posting
on
any
sensitive post for five years is not a
punishment prescribed in Rules.

34. In the circumstances, impugned
order cannot be sustained and writ
petition has to be allowed.

35. Accordingly, writ petition is
allowed.
Impugned
orders
dated
01.04.2002, 07.05.2002 and 12.11.2002
are hereby set aside. Petitioner shall be
entitled for all consequential benefits.
----------
(2020)08ILR A74
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 14.02.2020

BEFORE
THE HON'BLE SURYA PRAKASH
KESARWANI, J.

Writ-A No. 20396 of 2019
&
Writ-A No. 21469 of 2019
&
Writ-A No. 162 of 2019

Manoj Kumar & Ors. ...Petitioners
Versus
State of U.P. & Anr. ...Respondents

Counsel for the Petitioners:
Sri Radha Kant Ojha, Sri Shivendu Ojha

Counsel for the Respondents:
C.S.C., Sri A.K.S. Parihar

A. Service Law- The Uttar Pradesh
Secondary Education Services Selection
Rules, 1998: Rule 12(3)- U.P. Secondary
Education Service Selection Boards Act,
1982-
Sections
3,
9,
34(2),
35-
Recruitment/Selection - Bonafide and
unintentional mistake, in 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. (Para 16)

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 u/R 12
of the Rules, 1998. (Para 10, 18)

In view of Rule 12(3) of the Rules, 1998, the
Board cannot refuse to evaluate answer sheet
of a candidate (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), 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. (Para 15)

B. The instructions given in the OMR
answer sheets cannot be made basis to
refuse to evaluate answer sheets of the
petitioners merely on the ground that
they marked circles of one or two
questions of a subject other than the
two subjects opted by them in Part -I of
the OMR answer sheet. The mistake
committed by petitioners is a minor human
error. They are merely claiming for evaluation
of answers to the questions of the two
subjects opted by them in Part-I of the OMR
answer sheet. The answers marked by them
in
one
or
two
circles
of
another
section/subject (other than the opted two
subject), can neither be evaluated nor the
petitioners are claiming its evaluation which
are merely liable to be ignored. (Para 19, 20)

Writ
petitions
disposed
off
with
directions.
(E-4)
8 All. Manoj Kumar & Anr. Vs. State of U.P. & Anr.
75
Precedent followed:

1. Hanuman Dutt Shukla & ors. Vs St. of U.P.
& ors., (2018) 16 SCC 447 (Para 11)

2. Price Water, Coopers (P) Ltd. Vs CIT,
(2012) 11 SCC 316 (Para 17)

Precedent distinguished:

1. Karnataka Public Service Commission Vs
B.M. Vijay Shankar AIR 1992 SC 952 (Para 8)

2. Kumari Richa Pandey Vs Examination
Regulatory Authority & anr., Special Appeal
Defective No. 117 of 2014, decided on
18.02.2014 (Para 8)

3. Rama Manohar Yadav Vs St. of U.P. & 3
ors., Special Appeal No. 834 of 2013, decided
on 30.05.2013 (Para 8)

4. Km. Bandana Vs St. of U.P. & anr., Writ-A
No. 1452 of 2019, decided on 14.02.2019
(Para 8)

5. Mritunjay Kumar Mishra & anr. Vs St. of
U.P. & anr., Writ-A No. 3347 of 2019, decided
on 07.03.2019 (Para 8)

6. Shiv Prasad Dubey & 39 ors. Vs St. of U.P.
& anr., Writ-A No. 19486 of 2019, decided on
07.12.2019 (Para 8)

7. Meena Diwakar Vs St. of U.P. & 2 ors.,
Writ-A No. 154 of 2020,
decided
on
10.01.2020 (Para 8)

8. Sukhvir Singh Vs St. of U.P. & anr., Writ-A
No. 445 of 2020, decided on 27.01.2020
(Para 8)

Precedent cited:

1. Rajesh Kumar Yadav & 20 ors. Vs St. of
U.P. & 2 ors., Writ-A No. 26173 of 2018,
decided on 17.12.2018 (Para 8)

Petition challenges result/select list
dated 25.10.2019, declared/published
by U.P. Secondary Education Service
Selection
Board,
23,
Allenganj,
Prayagraj.
(Delivered by Hon'ble Surya Prakash
Kesarwani, J.)

1. Heard Sri R.K. Ojha, learned
Senior Advocate assisted by Sri Prakash
Chandra Tripathi and other learned
counsels for the petitioners and Sri
A.K.S. Parihar, learned standing counsel
for the State respondents.

Facts:-

2. Briefly stated facts of the present
case are that pursuant to advertisement
No. 01 of 2016 inviting applications for
recruitment on the post of Trained
Graduate
Teachers,
the
petitioners
submitted applications. They were issued
admits cards. They appeared in the
written examination. The OMR (Optical
Mark Reader) Answer sheet for written
examination was in two parts, briefly as
under:-

Part-I

(i) Name of the two subjects
attempted.

(ii) Test booklet series.

(iii) Roll Number.

(iv) Subject Code.

(v) Questions booklet series.

Part-II

(i) Questions on four subjects,
namely Geography, History, Economics
and Civics in separate blocks each
containing 63 questions with multiple
answer choice.

3. The Answer sheet contained
instructions
/
advisory
which
are
reproduced below:-

"IMPORTANT
INSTRUCTIONS
FOR MARKING RESPONSES ON
ANSWER SHEET
76 INDIAN LAW REPORTS ALLAHABAD SERIES

1. Use only Black Ball Point
Pen for darkening the circles.

2. Candidate must fill the Roll
No., Subject Code and Question Booklet
series (A,B,C or D) in the answer sheet
failing which his candidature will be
automatically be rejected.

3. Signature should be made
within the box.

4. Darken only one circle for
each question out of the 4 options as
explained below:-

Correct
Method
of
Marking Response

...........................

Wrong
Method
of
Marking Response

...........................

5. Marking should be DARK
and should completely fill the circle so
that letter/ number inside the circle is not
visible.

6. Make marks only in the
spaces provided. Please do not make any
stray mark on the answer sheet.

7. Rough work, if any must be
done on the specified place of the
question booklet.

8. Do not fold the Answer
Sheet. It may lead to difficulty in
evaluation.

9.
Answer
sheet
will
be
processed
by
electronic
means.
Invalidation of Answer Sheet due to
incomplete / incorrect filling will be the
sole responsibility of the candidate.

10.
Please
handover
the
Answer Sheet to the invigilator before
leaving the examination hall.

11. Overwriting or erasing will
be treated as multiple marking and no
mark for that question would be awarded

12. Please do not right or mark
on this answer paper outside the
demarcated areas. It may invalidate
your Answer Sheet.

13. Please see the method of
marking your Subject Code, Roll No. and
Booklet Series."

4. The selection for the aforesaid
recruitment is being carried by Uttar
Pradesh Education Service Selection
Board, Prayagraj, under the provisions of
The
Uttar
Pradesh
Secondary
Education Services Selection Rules,
1998 (herein after referred to as the
Rules, 1998). Rule 12(3) of the Rules,
1998 is relevant for the purposes of
present controversy which is reproduced
below:-

"The Board shall evaluate the
Answer sheets through examiner to be
appointed by the Board or through
computer and the examiner shall be paid
honorarium at the rate to be fixed by the
Board."

5. In paragraph 15 of the leading
writ petition, the petitioners have stated
that the OMR Answer sheet consist of
two parts. This fact has been admitted in
the counter affidavit of Sri Naval
Kishore, Deputy Secretary, Uttar Pradesh
Secondary Education Service Selection
Board, Prayagraj.
Certain
important
averments have been made by the
petitioners in paragraphs 16, 17, 21, 22,
23, 25 & 27 of the writ petition which
have been replied by the respondent
Board in paragraph 5 of the counter
affidavit.
The
averments
made
in
paragraph 28 of the writ petition have
been replied by the respondent Board in
paragraph 6 of the counter affidavit. All
these paragraphs of the writ petition and
the counter affidavit are reproduced
below:-
8 All. Manoj Kumar & Anr. Vs. State of U.P. & Anr.
77
Writ Petition
Counter affidavit
"16.
That
the
Petitioner
have
appeared in the
examination and
filled
up
their
respective OMR
sheets. For kind
convenience
of
this
Hon'ble
Court,
the
Petitioners
are
annexing detailed
Chart containing
names,
father's
name,
Roll
number, Booklet
Series
,
two
subjects
opted
from
Civics,
Geography,
History
and
Economics, total
numbers
of
questions
attempted
and
expected marks.
For kind perusal
of this Hon'ble
Court, true Copy
of the detailed
chart containing
details
of
the
Petitioners
is
being
filed
herewith
and
marked
as
Annexure -3 to
this writ petition.
17. That, as stated
above,
all
the
petitioner while
filled up OMR
sheets, they duly
filled
up
first
part
of
OMR
sheets and there
is no defects in
the first para of
OMR sheets at
all.
21.
That
by
perusal
of
the
instructions given
in OMR sheets it
is
very
much
clear that if there
is any defect in
first para of OMR
sheet
then
candidature will
5. That in reply to the contents of
paragraph nos. 16, 17, 18, 19, 20,
21, 22, 23, 24, 25, 26 & 27 of the
writ petition it is stated that
advertisement no. 1 of 2016 for
trained graduate teacher in social
science
was
issued.
Written
examination was held and result
was declared on 25.10.2019. In
column no. 9 it was averred that
invalidation of answer sheet due to
incomplete / incorrect filling will
be the sole responsibility of the
candidate. For the subject social
science, two options were to be
filled out of geography, history,
economics and civics. Since the
petitioners
have
answered
the
question of other subjects also,
therefore evaluation of that answer
may not be done due to violation of
the instruction averred in column
no. 12. In column no. 12 the
instruction in given as' please do
not write or mark on this answer
paper outside the demarcated areas,
it may invalidate your answer
sheet. In Special Appeal No. 834 of
2013 this Hon'ble Court has clearly
held that in case a teacher could not
fill application form correctly and
his appointment is made, this will
effect the carrier of students. The
operative part of the order dated
30.5.2013 passed in Special Appeal
No. 834 of 2013 are quoted below:-
"We are not inclined to interfere in
this
special
appeal
because
interference in such matters would
result in thoroughly incompetent or
utterly negligent persons becoming
teachers and spoiling the future of
the children whom they will teach.
If prospective teacher can not even
correctly fill up the simple on line
application
form
for
his
employment, it is obvious what he
is going to teach if appointed.
There are certain decisions cited on
this issue. But none of them deal
with this aspect whether under the
discretionary jurisdiction of the
Court under Article 226 of the
Constitution
of
India
such
incompetent persons should be
allowed to play with the future of
the next generation.
Therefore, we are of the opinion
that the petitioner / appellant
should wait till he attains sufficient
be cancelled as
per
instructions
no.2
of
OMR
sheet.
22.
That
in
instruction nos.
6 and 12 of OMR
sheets it is clear
that
items
are
only related with
respect to the fact
that if some mark
is made on other
part
of
OMR
sheets, so it is not
attracted to the
petitioners.
23. That it is also
relevant
to
mention that if
overwriting
is
made
in
two
places then mark
will
not
be
allotted
to
the
candidates and it
is also not case of
the petitioners.
25. That once it is
clear that in first
part
of
OMR
sheet,
the
petitioners have
opted
questions
of
particular
sections
then
they cannot be
denied
for
awarding marks
against
the
correct
answer
of the correct
questions.
27.
That
by
perusal
of
the
instructions it is
also
clear
that
candidature will
be cancelled if
booklet series and
subjects are not
properly
opted
and
mentioned
and by perusal of
this part of OMR
sheet
of
the
petitioners it is
clear
that
the
Petitioners
have
opted
subjects
and also put their
maturity and learns to be more
careful
in
filling
up
the
applications for jobs. The appeal is
therefore, dismissed."
78 INDIAN LAW REPORTS ALLAHABAD SERIES
booklet series and
signatures
properly,
therefore,
candidatures
of
the
Petitioners
cannot
be
cancelled
and
copies
properly
checked.
28. That it is also
relevant
to
mention
that
earlier
the
Respondent no.2
has
issued
an
advertisement
no.01/2013
for
appointment of
Assistant
Teacher in L.T.
Grade for Social
Science Subjects
in other sections
against
few
questions and it
was
checked
properly
and
their
names
were
found
place
in
the
select list. For
example
the
person
namely
Mr.
Akhand
Singh has applied
for the post of
Assistant Teacher
in L.T. Grade for
Social
Science
Subject
against
the advertisement
no.01/2013
having Roll no.
020915720
and
who has marked
in
one
section
which he has not
opted against few
questions,
however,
his
copy has properly
checked
and
managed by the
Board
and
his
name was also
found
in
the
select list. For
kind perusal of
this
Hon'ble
Court,
True/
6. That in reply to the contents of
paragraph no. 28 of the writ
petition
it
is
submitted
that
petitioners cannot claim parity of
any mistake done earlier and since
they have violated the instruction
nos. 6, 9 & 12 hence their answer
sheet have been held invalid.
Instruction nos. 6, 9 & 12 are as
follows:-
Instruction No. 6 Make marks only
in the spaces provided. Please do
not make any stray mark on this
answer sheet.
Instruction No.9 Answer sheet will
be processed by electronic means.
Invalidation of Answer sheet due to
incomplete / incorrect filling will
the sole responsibility of the
candidate.
Instruction No. 12 Please do not
write or mark on this Answer paper
outside the demarcated areas. It
may
invalidate
your
Answer
Sheet."
photostat Copies
of
the
advertisement
no.01/ 2013 and
OMR sheet along
with relevant part
of result/ select
list
containing
name
of
Mr.
Akhand Singh are
being
filed
herewith
and
marked
as
Annexure-6
to
this
Writ
petition."

6. Perusal of the copies of OMR
Answer sheets collectively filed by the
petitioner as Annexure 4 to the writ
petition,
shows
that
most
of
the
petitioners have darkened one or two
circles of a subject other than the two
subjects opted by them in Part-I of the
OMR Answer sheet. The Board has not
evaluated such Answer sheets on the
ground
that
such
candidates
have
violated instruction nos. 6, 9 & 12 of the
instructions accompanying the Answer
sheet. Hence, the petitioners have filed
the present writ petition praying for
the following reliefs as mentioned in the
leading writ petition:-

"(a) A writ order or direction in
the nature of certiorari quashing the
impugned result / select list dated
25.10.2019 (Annexure -5 to the writ
petition) declared / published by the
respondent no. 2.

(b) A writ order or direction in
the nature of mandamus commanding the
respondent no. 2 to evaluate OMR sheets
of the petitioners.

(c) A writ order or direction in
the nature of mandamus commanding the
respondent no. 2 to declare result of the
petitioners and also call for interview
and further selection be made in
8 All. Manoj Kumar & Anr. Vs. State of U.P. & Anr.
79
accordance with procedure as provided,
after declaration of the result of the
petitioners."

Submissions on behalf of the
petitioners:-

7.

Learned
counsel
for
the
petitioners submits that OMR Sheet /
Answer Sheet is in two parts. In the first
part, if there is any error, then as per
instructions, the Answer Sheet / OMR
Sheet is not to be evaluated and the
candidature
will
automatically
be
rejected. The second part of the OMR
Sheet / Answer Sheet contains questions
to be answered by a candidate. If there is
no error in the first part of the OMR
Sheet, but there is some minor mistake in
marking answers to questions in the
second part of the OMR Sheet then the
respondent - U.P. Secondary Education
Selection Board cannot say that entire
answers given in the OMR Sheet shall
not be evaluated at all. The stand taken
by the learned standing counsel that
OMR Sheet cannot be evaluated even in
case of minor human errors, is contrary
to the instructions of the respondent.

Submissions on behalf of the
respondents:-

8. Learned sanding counsel submits
that error of any kind in the OMR Sheet
committed by a candidate shall result in
rejection of the candidature or non
evaluation of the OMR Sheet. In support
of his submissions, learned standing
counsel has relied upon a judgment of
Hon'ble Supreme Court in the case of
Karnataka Public Service Commission
Vs. B.M. Vijaya Shankar AIR 1992 SC
952 (paragraph 2) and judgments of this
Court in Kumari Richa Pandey Vs.
Examination Regulatory Authority &
another in Special Appeal Defective No.
117 of 2014 decided on 18.2.2014,
Special Appeal No. 834 of 2013 (Ram
Manohar Yadav Vs. State of U.P. & 3
others) decided on 30.5.2013, Writ-A No.
1452 of 2019 (Km. Bandana Vs. State of
U.P. & another) decided on 14.2.2019,
Writ-A No. 3347 of 2019 (Mritunjay
Kumar Mishra & another Vs. State of
U.P. & another) decided on 7.3.2019,
Writ-A No. 19486 of 2019 (Shiv Prasad
Devey & 39 others Vs. State of U.P. &
another) decided on 7.12.2019, Writ-A
No. 26173 of 2018 (Rajesh Kumar Yadav
& 20 others Vs. State of U.P. & 2 others)
decided on 17.12.2018, Writ-A No. 154
of 2020 (Meena Diwakar Vs. State of
U.P. & 2 others) decided on 10.1.2020
and Writ-A No. 445 of 2020 (Sukhvir
Singh Vs. State of U.P. & another)
decided on 27.1.2020.

Discussion and Findings:-

9. I have carefully considered the
submissions of learned counsels for the
parties.

10. The respondents have neither
stated in the counter affidavit nor placed
any material before this Court which may
indicate that the aforequoted instructions
of the OMR Answer sheet has statutory
force. There is no statutory provision
which disentitles a candidate from
evaluation of his Answer sheet, who, by
inadvertence or due to human error
marked one or two answer circles of a
subject other than the two subjects opted
by him in the first part of the OMR
Answer sheet.

11. In the case of Hanuman Dutt
Shukla & others Vs. State of U.P. &
80 INDIAN LAW REPORTS ALLAHABAD SERIES
others (2018) 16 SCC 447 (paragraphs 7
& 8), the Hon'ble Supreme Court noted /
observed as under:-

"7. It is submitted by Mr. P.P.
Rao, learned Senior Counsel and other
learned
Senior
Counsel
/
counsel
appearing for the parties that as per the
Recruitment Rules framed by the State
Government to appoint the eligible
candidates to the posts, referred to supra,
there is not prohibition to disentitle a
candidate from evaluating the answer
sheets, who used whitener or blade in the
relevant blocks in the OMR sheet (answer
sheet). The said advisory note given by
the Selection Board cannot be treated as
a rule to declare such candidates who
have used whitener or blade in the
relevant blocks in the OMR / answer
sheet as ineligible for evaluating their
answer sheets. The statement is in
conformity with the Recruitment Rules
and it would further support the stand
taken by the learned Advocate General,
representing the respondent State of
U.P. In making submission on the basis
of written suggestions.

8. The appeals are disposed of
in the aforesaid terms on the basis of the
statement made by the learned Advocate
General on the instructions received from
the Principal Secretary (Home) and the
legal submissions referred to supra."

12. It is admitted fact of the case
that the petitioners have opted two
subjects
and
darkened
the
circles
accordingly in Part-I of the OMR Answer
sheet. In Part-II of the OMR Answer
sheet, they answered the questions of
the two subjects opted by them, but
inadvertently darkened one or two
circles of a third subject, due to which
their answer sheets have not been
evaluated.

13.

Thus,
there
arise
two
Questions in these writ petitions;

(a) whether the Rules, 1998
prohibits the Board to evaluate such
OMR Answer sheets in which in Part-II
the petitioners have inadvertently and
unintentionally darkened answer circle of
one or two questions of a subject other
than the two subjects opted by them in
Part-I of the OMR Answer sheet?

(b) Whether even on the basis
of
instruction
nos.
6,
9
&
12
accompanying the OMR Answer sheet,
the respondents can refuse to evaluate the
Answer sheets of the petitioners?

Question-(a)

14. "The Uttar Pradesh Secondary
Education Service Selection Board"
(herein after referred to as the Board) has
been constituted under Section 3 of the
U.P.
Secondary
Education
Service
Selection Boards Act, 1982 (herein after
referred to as the Act, 1982). Its powers
and duties are described in Section 9
which includes in clause (a) preparation
of guidelines on matters relating to the
method of direct recruitment of teachers.
The Board has been conferred power
to make Regulations with the prior
approval of the State Government to
lay down the procedure to be followed
for
discharging
its
duties
and
performing functions under the Act.
Sub-section (2) of Section 34 provides
that the Regulations made under subsection (1) shall not be inconsistent
with the provisions of the Act or the
Rules made under Section 35. The
Rules, 1998 has been enacted in exercise
8 All. Manoj Kumar & Anr. Vs. State of U.P. & Anr.
81
of powers conferred under Section 35 of
the Act, 1982.

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 PartI 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 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
82 INDIAN LAW REPORTS ALLAHABAD SERIES
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.

Question-(b)

19. The instructions given in the
OMR Answer sheets cannot be made
basis to refuse to evaluate Answer sheets
of the petitioners merely on the ground
that they marked circles of one or two
questions of a subject other than the two
subjects opted by them in the first part of
the OMR Answer sheet. The mistake
committed by the petitioners is a minor
human error. They are merely claiming
for evaluation of answers to the questions
of the two subjects opted by them in the
part-I of the OMR Answer sheet. The
answers marked by them in one or two
circles of another section / subject (other
than the opted two subjects), can neither
be evaluated nor the petitioners are
claiming its evaluation which are merely
liable to be ignored

20. The petitioners have stated in
paragraph 17 of the writ petition that they
have duly filled up Part-I of the OMR
Answer sheet and there is no defect in the
first part. In paragraph 18 of the writ
petition, the petitioners have stated that
in haste they had filled up the answers to
some questions of a subject other than
the two subjects opted by them in part-I.
In paragraphs 25 & 27 of the writ
petition, it has been stated that the correct
answers of the questions of the section
(subject) opted by the petitioners in partI, cannot be denied to be awarded marks.
These paragraphs have been replied by
the respondents in paragraph 5 of the
counter affidavit in which they have not
denied it.

21. In paragraphs 21, 22 & 23 of
the writ petition, the petitioners have
stated that if there is any defect in part-I
of
the
OMR Answer
sheet,
then
candidature will be cancelled as per
instruction no. 2. Instruction nos. 6 & 12
of the OMR Answer sheet relate to facts
when some mark is made on other part of
the OMR Answer sheet, which are not
attracted to the petitioners. Therefore, the
instructions relating to overwriting shall
not be attracted in the case of the
petitioners. These paragraphs 21, 22 &
23 of the writ petition have been replied
by the respondent Board in paragraph 5
of the counter affidavit, but no specific
denial has been made.

22. Perusal of the instruction no. 2
shows that candidature of a candidate
will automatically be rejected if he fails
to fill up the roll numbers, subject code
and question booklet series in the answer
sheet. This instruction is attracted to the
first part of the OMR Answer sheet.

23. Instruction no. 6 provides for
making marks only in the spaces
provided. The petitioners have put marks
in the spaces provided. Therefore, this
instruction has not been violated.

24. Instruction no. 9 is advisory in
nature which provides for invalidation of
Answer sheet due to incomplete /
incorrect filling. This clause is also
referable to part-I of the OMR Answer
sheet.
8 All. Manoj Kumar & Anr. Vs. State of U.P. & Anr.
83

25. Instruction no. 12 instructs not
to right or mark on the Answer paper
outside
the demarcated
areas. The
petitioners have not written or marked
outside the demarcated area. Nothing of
this kind has been pointed out on facts by
the respondents in their counter affidavit.

26. The judgment relied upon by the
learned counsel for the respondents are of
no help to them. In the case of Karnataka
Public Service Commission (supra) relied
by learned counsel for the respondents, the
facts were that roll number was written not
only on the space provided therefor, but also
on the cover page of the answer book and
on all pages inside the answer book.
Therefore, the Commission was held to be
justified in not evaluating the answer book.
Such are not the facts of the present writ
petition. In the case of Kumari Richa
Pandey (supra), the candidate had not filled
up the column of language in which she had
attempted answers in OMR Answer sheet.
In the case of Ram Manohar Yadav (supra),
there was failure on the part of the candidate
to fill up correctly the simple online
application form for employment. In the
case of Kumari Bandana (supra), the
candidate failed to fill up correct subject. In
the case of Mritunjay Kumar Mishra
(supra), the facts were that the petitioner
wrongly mentioned the subject in the first
part. In the cases of Shiv Prasad Dubey
(supra), Meena Diwakar (supra) and
Sukhvir Singh (supra), the facts were that
candidates wrongly filled up their roll
numbers. Thus, all the judgments relied by
the learned counsel for the respondents are
distinguishable and have no bearing on the
facts of the present case.

27. The petitioners have stated in
paragraph 28 of the writ petition that in
similar circumstances the OMR Answer
sheet of some candidate who appeared in
examination for recruitment pursuant to
advertisement No. 01 of 2013, have been
evaluated. This statement of fact has not
been denied by the respondent in
paragraph 6 of the counter affidavit
which has been reproduced above.
Therefore, the respondents cannot deny
similar treatment to the petitioners.

28. The stand taken by the
respondents for non evaluation of OMR
Answers sheets of the petitioners, is not
sustainable
for
one
more
reason.
Instruction
no.
11
provides
that
overwriting or erasing will be treated as
multiple marking and no mark for that
question would be awarded. Therefore,
had the petitioners erased the mark
inadvertently put by them in the circle of
answers to questions of a non opted
subject, then as per instruction no. 11 no
mark was to be awarded. Petitioners are
not claiming for marks for darkening a
wrong circle. Therefore, such marking in
the circle by inadvertence merely needs
to be ignored.

Conclusion:-

29. For all the discussions made above,
I hold that if a candidate correctly fills up the
mandatory information in Part-I of the OMR
Answer sheet, does not write or mark on his
answer paper outside the demarcated area
and hands over the answer sheet to the
Invigilator before leaving the examination
hall, then subject to instruction no. 11, the
Part-II of the OMR Answer sheet bearing
answers to the questions of the subject opted
in Part-I, has to be evaluated in terms of Rule
12(3) of the Rules, 1998.

29. For all the reasons aforesaid, all
the writ petitions are disposed off with
the directions to the respondent no. 3 to
84 INDIAN LAW REPORTS ALLAHABAD SERIES
evaluate OMR Answer sheet of such
petitioners who have answered in Part-II of
the OMR Answer sheet the questions of the
two subjects opted by them, but inadvertently
also marked one or two circles of another
subject. Those petitioners who are found
successful
in
the
aforesaid
written
examination, shall be called for interview.
Thereafter, their results shall be declared in
accordance with law.
----------
(2020)08ILR A84
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 20.08.2020

BEFORE
THE HON'BLE NEERAJ TIWARI, J.

Writ A No. 20793 of 2019

Prakash Chandra ...Petitioner
Versus
Sri Ritesh Bhargava ...Respondent

Counsel for the Petitioner:
Sri Pramod Kumar Srivastava, Sri Deepak
Singh

Counsel for the Respondent:
Sri Krishna Mohan Garg

A. Civil Law - Rent Control and Eviction -
Vacation of shop - U.P. Urban Buildings
(Regulation of Letting, Rent and Eviction)
Act, 1972: Sections 21(a), 21(2), 30; U.P.
Urban Buildings (Regulation of Letting,
Rent and Eviction) Rules, 1972: Rule
16(2)(a) & (b); Hindu Succession Act,
1956: Section 3.

Bonafide need - Landlord is the best
judge of his need and Court may not
interfere in the matter. It is the choice
of the landlord to choose the place for
the business, which is most suitable for
him. (Para 49, 50)

In the present case, undisputedly landlord is
not having any another accommodation
whereas petitioner is having alternative
accommodation at 49/99 Naughara, Kanpur
Nagar.

B.
Comparative
hardship
-
It
is
necessarily required on the part of
tenant to make full endeavour to search
alternative accommodation to prove his
comparative hardship after receiving
copy of release application.

The fact that the petitioner never made any
effort
for
searching
alternative
accommodation coupled with law laid down
by the Apex Court as well as this Court, no
relief can be granted to the petitioner on the
ground of comparative hardship. (Para 53 to
55)

C. Evidence Law - Evidence Act, 1872-
Section 58 - Admissions in pleading or
judicial admissions, admissible u/s 58 of
the Evidence Act, 1872 made by the
parties or their agents at or before the
hearing of the case, stand on a higher
footing than evidentiary admissions.
Any admissions made by the party to
the suit in earlier proceeding are also
admissible against him. (Para 44)

Petitioner tenant has never disputed tenancy
and also filed case u/s 30 of the Act, 1972 in
the capacity of tenant, therefore, he cannot
be permitted to take new plea and further no
denial of tenancy is required by the landlordrespondent in light of Section 58 of the
Evidence Act, 1872. (Para 46)

Petitioner never raised the issue before the
Prescribed Authority or Appellate Authority,
where it could be proved by placing evidence
whether he is tenant or not, therefore, he
cannot be permitted to raise this issue before
the High Court in the writ petition. The
contention of the learned counsel for the
petitioner is also not acceptable that he has
raised the issue in the written statement that
tenancy is continued from 1960, which was
not denied by landlord-respondent in light of
S. 58 of Evidence Act. Once the tenancy is
accepted, there was no need to landlord to
deny the same as the facts admitted need not
be
proved.
(Para
47)