# Shiv Prasad Duvey & Ors v. State of U.P. & Anr

- **Citation:** (2021) 5 ILRA 119
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-04-08
- **Case number:** Special Appeal Defective No. 494 of 2020
- **Bench:** Manoj Misra, Rohit Ranjan Agarwal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/shiv-prasad-duvey-ors-v-state-of-u-p-anr-47047
- **Pages:** 5

## Headnote

(A) Service Law - In case of clear and
categorical instructions that in an erroneous
entry in the OMR sheet in respect of certain
fields of information sought, including Roll
number, would render the answer sheet invalid.
(Para 11-12)

Special Appeal Rejected. (E-8)

List of Cases cited:-

## Text

5 All. Shiv Prasad Duvey & Ors. Vs. State of U.P. & Anr.
119
has been expressly dealt with in Article 234
of the Constitution. We are of the view that
the Selection Committee has no power to
prescribe the minimum marks which a
candidate should obtain in the aggregate
different
from
the
minimum
already
prescribed by the Rules in its Appendix. We
are, therefore, of the view that the
exclusion
of
the
names
of
certain
candidates, who had not secured 600 marks
in the aggregate including marks obtained
at the viva-voce test from the list prepared
under rule 18 of the Rules is not legal."

12. In the light of these decisions
the conclusion is inevitable that the
Commission in the instant case also has no
power to prescribe the minimum standard
at viva-voce test for determining the
suitability of candidates for appointment as
Munsifs.

13. ....

14. ....

15. But the crux of the matter is
whether the Judge present at the viva-voce
test has the power to add anything to the
Rules of recruitment. He may advice the
Commission as to the special qualities
required for judicial appointments. His
advice may be in regard to the range of
subjects in respect of which the viva-voce
shall be conducted. It may also cover the
type and standard of questions to be put to
candidates; or the acceptance of the
answers given thereof. But his advice
cannot run counter to the statutory Rules."

35. For these reasons, we do not
approve the decision taken by learned
Single Judge directing to conduct Stage II
and III of the recruitment process afresh.

36. Consequently the impugned
order dated 17.03.2021 passed in Writ A
No. 29665 of 2015 is set aside. The writ
petitions filed by the petitioners are
dismissed.

37 . The Appeals are allowed to the
extent above. No Costs.

38. All interlocutory applications
stand disposed of.
----------

(2021)05ILR A119
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 08.04.2021

BEFORE

THE HON'BLE MANOJ MISRA, J.
THE HON'BLE ROHIT RANJAN AGARWAL, J.

Special Appeal Defective No. 494 of 2020

Shiv Prasad Duvey & Ors. ....Petitioners
Versus
State of U.P. & Anr. ...Respondents

Counsel for the Petitioners:
Sri Satyaveer Singh

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

(A) Service Law - In case of clear and
categorical instructions that in an erroneous
entry in the OMR sheet in respect of certain
fields of information sought, including Roll
number, would render the answer sheet invalid.
(Para 11-12)

Special Appeal Rejected. (E-8)

List of Cases cited:-

1. Ram Manohar Yadav Vs St. of U.P. & ors.
Special Appeal No. 834 of 2013
120 INDIAN LAW REPORTS ALLAHABAD SERIES
2. Km. Richa Pandey Vs Examination Regulatory
Authority & anr. Special Appeal Defective No.
117 of 2014

3. Archana Rastogi (km) Vs St. of U.P. & ors.
2012 (3) ADj 219 (DB)

4. Karnataka Public Service Commission Vs B M
Vijay Shankar (1992) 2 SCC 206

5. Jai Karan Singh & 52 ors. Vs St.of U.P. & 4
or. Special Appeal No. 90 of 2018

6. Ramesh Chandra & 17 ors. Vs The St. of U.P.
& 2 ors. Special Appeal No. 247 of 2020

(Delivered by Hon'ble Manoj Misra, J)

1. This intra court appeal arises from
a judgment and order of a Single Judge,
dated
7.12.2019,
passed
in
Writ-A
No.19486 of 2019 by which the writ
petition filed by the appellants along with
36 others for a direction upon the U.P.
Secondary Education Service Selection
Board, Prayagraj (for short the Board) to
declare their result of written examination
held, for the post of Trained Graduate
Teacher, has been dismissed.

2. In the office report dated
04.02.2020, the appeal is reported to be
beyond time by 29 days. However, it
appears, there were other defects also,
which were removed later.

3. As in the meantime Covid-19
pandemic had set in, we deem
it
appropriate to condone the delay. The delay
condonation application No.1 of 2020 is
thus allowed. The delay in filing the appeal
is condoned. Office to assign regular
number to the appeal.

4. The facts giving rise to this appeal,
in a nutshell, are that the writ petitioners
(i.e. who filed Writ A No.19486 of 2019),
out of which four are before us as
appellants, had not correctly darkened/
filled the bubbles/ circles of the OMR
sheets, either in respect of their roll number
or booklet series number or both, even
though it was mandated by the instructions
provided therein. Consequently, their OMR
sheets were not evaluated. The appellants 2
to 4 before us are those who had filled their
roll number correctly in numerals, in the
rectangular box provided in the OMR
sheet, but had not correctly darkened/ filled
the bubbles/ circles below to confirm the
roll number filled in the rectangular box.
Whereas appellant no.1, in addition to the
above-noted mistake committed by the
appellants 2 to 4, had also committed a
mistake in respect of filling the Booklet
series number. As a consequence whereof,
their answers in the OMR sheets were not
evaluated. The learned Single Judge
dismissed the writ petition by observing
that the controversy in issue is squarely
covered by a Division Bench decision of
this Court in Special Appeal No.834 of
2013 and Special Appeal Defective No.
117 of 2014.

5. We have heard the learned counsel
for the appellants; the learned standing
counsel for the respondent no.1; and Sri
A.K.S. Parihar for the respondent no.2 (the
Board).

6. Before we proceed to notice and
evaluate the submissions made before us, it
would be appropriate to examine as to what
was held in the two decisions relied by the
learned Single Judge in the impugned
judgment. In Special Appeal No.834 of
2013 (Ram Manohar Yadav v. State of
U.P. & others, decided on 30.05.2013),
the appellant who had applied for selection
on the post of a teacher had not filled the
online application form correctly. He
5 All. Shiv Prasad Duvey & Ors. Vs. State of U.P. & Anr.
121
applied for rectification of the mistake
which was not accepted. Thereafter, he
filed a writ petition which was dismissed.
Aggrieved therewith, he filed Special
Appeal before a Division Bench of this
Court. While dismissing the appeal, the
Division Bench observed: "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."

7. In Special Appeal Defective
No.117 of 2014 (Km. Richa Pandey v.
Examination Regulatory Authority and
another, decided on 18.02.2014), the
petitioner had not filled the column of
language in which she had attempted
answers in the OMR answer sheet. The
learned Single Judge found that in absence
of mention of language in which the
answers were attempted, OMR sheet would
not be acceptable for evaluation. The
Division Bench, on appeal, called for the
records and found that there were clear
instructions that if requisite columns are
not filled correctly, the answers will not be
evaluated. Thus, while upholding the
decision of the learned Single Judge, the
Division Bench observed:

"The OMR sheets are provided to
the candidates to speed up evaluation
through help of computer. In case we
accept the argument of learned counsel for
the petitioner that the language in which
the petitioner had written essay could be
checked up by the examiner before
feeding answer book into computer, the
entire process of expediting the results will
be lost. Where OMR sheets are to be
examined with the aid of the computer, it is
not advisable and practical to direct that
each OMR sheet should be checked by the
examiners and the columns, which have not
been filled up may be filled up by the
examiner himself with the aid of the
language used by the candidates for
writing essay. We are informed by Standing
Counsel that about seven lacs candidates
had appeared in the test.

With such large number of
candidates appearing in TET Examination
2013 it would not have been possible nor it
was feasible for examiners to look into the
answer sheets individually before feeding
them into computer for correcting any
mistakes.

We agree with the reasoning
given by the learned Single Judge that
where the applicant is not capable of
correctly filling up the form, she is not
entitled to any discretionary relief from the
Court."

8. The learned counsel for the
appellants has contended that the facts of
the two cases noticed above were different
inasmuch as here the appellants have
correctly mentioned their roll numbers in
the numeral form within the column
provided in the OMR sheet though the
bubbles/ circles of the OMR sheet were not
correctly darkened/ filled, which was just a
human error and for which the appellants
are not to be penalised. He placed reliance
on a Division Bench decision of this Court
in Archana Rastogi (Km) v. State of U.P.
and others, 2012 (3) ADJ 219 (DB) in
122 INDIAN LAW REPORTS ALLAHABAD SERIES
which though the applicant had incorrectly
filled up marks obtained in the High School
Examination but had enclosed the markssheet with the application, therefore, upon
finding that the marks disclosed were less
than what she had produced certificate of,
applying the principle of human error, in
equity, the Court allowed correction. The
learned counsel for the appellant submits
that the same principle would apply here
and, therefore, the appellants were entitled
to the relief sought in their petition.

9. Per contra, Sri Parihar, the learned
counsel for the respondents, submitted that
there were clear instructions that if any of
the fields, including relating to roll number,
is incorrectly filled then the OMR sheet
would not be evaluated. He submits that
OMR sheets have been universally adopted
by examining bodies that conduct public
examinations at a large-scale with a view to
expedite the process of evaluation. Data,
including answers rendered by darkening
the circles or bubbles appearing on an
OMR sheet, is scanned by scanners and the
scanned data is evaluated with the aid of
software. In case, there is a mistake or
mismatch of the data furnished, the
software rejects the OMR sheet. Therefore,
a candidate has to take full and complete
care not only in reading the instructions but
also in following them because it is not
feasible for an examining body, in an
examination
of
such
magnitude,
to
manually evaluate each answer sheet. He
submitted that where mistakes occur in
filling of OMR sheets, the mistakes are not
condonable. The view of this Court as well
as the Apex Court has been consistent in
this regard. In support of his submission, in
addition to the decisions relied upon by the
learned Single Judge in the impugned
judgment, Sri Parihar has cited the
following decisions: (a) (1992) 2 SCC 206
: Karnataka Public Service Commission
v. B M Vijay Shankar; (b) Jai Karan
Singh and 52 others v. State of UP and 4
others: Special Appeal No.90 of 2018,
decided
on
25.4.2018;
(c)
Ramesh
Chandra & 17 others v. The State of UP
& 2 others: Special Appeal No.247 of
2020, decided on 09.06.2020.

10. We have given our thoughtful
consideration to the rival submissions.
Upon perusal of the record, we find that in
so far as the appellants 2, 3 and 4 are
concerned, on their part, there appears a
solitary mistake, that is with regard to
erroneous darkening/ filling of the circles/
bubbles, relating to their Roll number, in
the OMR sheet. In respect of appellant
no.1, in addition to above, there is
erroneous filling of booklet series number
as well. The argument on behalf of the
appellants is that this a pure human error
and as there existed a roll number column
in the OMR sheet to be filled in numerals,
and the numerals were written correctly,
therefore, if there is a manual check of their
Roll numbers, their result can easily be
declared.

11. No doubt, it does appear to be a
hard case, at least for the appellants 2, 3
and 4. But the issue here is whether the writ
court should interfere in such matters,
particularly when instructions are clear and
categorical that an erroneous entry in the
OMR sheet in respect of certain fields of
information sought, including Roll number,
would render the answer sheet invalid. The
said issue is no longer res integra. In Jai
Karan Singh's case (supra), a Division
Bench of this court, dealing with a similar
issue, observed:

"The
writ
petitioners
had
admittedly given incorrect information in the
5 All. Prashant Singh Vs. State of U.P. & Ors.
123
OMR Answer sheet relating to either the
Registration Number, the Roll Number or
Question Booklet Series and the Language
attempted and that is why their results have
not been declared. The manual check can be
conducted but the larger issue before the
Court is whether such a direction should be
given at all. In our opinion, it is for the
examining body to work out a method for the
recruitment process and the manner in which
Answer Sheets is evaluated and once clear
instructions
have
been
given
to
the
candidates
that
incorrect
information
relating
to Registration
Number,
Roll
Number, Question Booklet Series and
Language attempted would lead to non-
declaration of the result, the examining body
should not be directed to conduct a manual
check..... This would take substantial time
and ultimately result in causing delay in the
declaration of the result. It is this delay that
was sought to be eliminated by requiring the
candidates to give reasons in the OMR
Answer Sheet so that they could be scanned
by electronic means.

.......The error committed by the
candidates cannot be said to be minor in
nature. It is the Registration Number, Roll
Number that determines identity of the
candidates. The candidates who appeared
in the examination were mature students
and were to be appointed as Assistant
Teachers in institution. They should have
read the instructions that was issued time
and again and should have correctly filled
the entries relating to Roll Number,
Registration Number, Question Booklet
Series and Language attempted. The
entries were, however, inaccurately filled
as a result of which the scanner has not
been able to process the result." (Emphasis
Supplied)

Similar view has been taken by
another Division Bench of this Court in
Ramesh
Chandra's
case
(supra)
by
observing: "if this Court permits the
appellants and persons alike to have manual
corrections in the OMR sheet, then that will
frustrate
the entire purpose of using
technology for expeditious completion of the
process of selection."

12. The submission of the learned
counsel for the appellants that Roll Number
was written correctly in numerals therefore
there was no justification to reject the answer
sheet only because the circles/ bubbles were
not filled correctly does not appeal to us.
Because, it is from the colouring or darkening
of circles/ bubbles in the OMR sheets that the
scanner is able to process the information.
The mention of Roll Number in numerals
might be to keep a double-check on foul play.
However, whatever the purpose might be, we
need not speculate on that. The fact remains
that once the instructions were clear and were
to apply universally to all candidates, if the
error as per the instructions is fatal, a handsoff approach by the Writ Court is justified,
hence we find no good reason to interfere in
the matter. Consequently, the appeal is
dismissed.
----------
(2021)05ILR A123
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 12.05.2021

BEFORE

THE HON'BLE NEERAJ TIWARI, J.

Writ -A No. 6939 of 2020

Prashant Singh ...Petitioner
Versus
State of U.P. & Ors. ...Respondents