# Vinay Kumar v. State of U.P. & Ors

- **Citation:** (2022) 3 ILRA 730
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-01-27
- **Case number:** Special Appeal No. 33 of 2022
- **Bench:** Rajesh Bindal, C.J. Prakash Padia
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/vinay-kumar-v-state-of-u-p-ors-48233
- **Pages:** 11

## Headnote

Sri Ankit Gaur, State Law Officer, Sri Anil
Kumar Singh

Civil Law - Constitution of India, 1950 -
Article 226 - Appointment - through
Competitive Examination - writ petition
for - evaluation of OMR Sheet on the
account of minor error - permission for
correction would lead to chaos - hence
petition dismissed - Special Appeal -
once the instructions were clear and
applied universally to all candidates -
evaluation of OMR sheet cannot be
permitted physically either - if an error
as per the instruction is fatal, a handsoff approached of the writ court is
justified - Appeal dismissed.(Para - 15,
31, 32)

Special Appeal dismissed. (E-11)

List of Cases cited: -

## Text

730 INDIAN LAW REPORTS ALLAHABAD SERIES
conclusive
evidence
for
disbelieving
registered
instrument
of
transfer
particularly when it is settled law that
revenue entries do not pertain to proof of
title and are merely a document to indicate
possession of the property and that too only
for the purposes of payment of revenue to
State.

23. Upon consideration of aforesaid
facts,
the
impugned
orders
dated
09.12.1991 as well as 31.10.1995 passed by
the Prescribed Authority Ceiling and the
Appellate Court, respectively being clearly
against statutory provisions of the Act,
1970 and dictum of this court are
unsustainable and are therefore, quashed by
issuing the writ in the nature of certiorari.

24. Consequently, the writ petition
succeeds and is allowed. Parties to bear
their own cost.
----------
(2022)03ILR A730
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 27.01.2022

BEFORE

THE HON'BLE RAJESH BINDAL, C.J.
THE HON'BLE PRAKASH PADIA, J.

Special Appeal No. 33 of 2022

Vinay Kumar ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Vinod Kumar Singh, Sri Manoj Kumar
Singh, Sri Birendra Prasad Maurya

Counsel for the Respondents:
Sri Ankit Gaur, State Law Officer, Sri Anil
Kumar Singh

Civil Law - Constitution of India, 1950 -
Article 226 - Appointment - through
Competitive Examination - writ petition
for - evaluation of OMR Sheet on the
account of minor error - permission for
correction would lead to chaos - hence
petition dismissed - Special Appeal -
once the instructions were clear and
applied universally to all candidates -
evaluation of OMR sheet cannot be
permitted physically either - if an error
as per the instruction is fatal, a handsoff approached of the writ court is
justified - Appeal dismissed.(Para - 15,
31, 32)

Special Appeal dismissed. (E-11)

List of Cases cited: -

1. Karnataka Public Service Commission & ors.
Vs BM Vijaya Shankar & ors. (AIR 1992 SC
952),

2. St. of Tamil Nadu & ors. Vs G. Hemalathaa &
anr.(2019 SCC online SC 1113),

3. Jyoti Yadav & anr.Vs St. UP & ors. (WP No.
322/2021 order Dt. 08.04.2021),

4. Ram Manohar Yadav Vs St. of UP & others
(Special Appeal No. 834/2013 Judgment & order
Dt. 30.05.2013),

5. Arti Verma Vs St. of UP & ors. (Special Appeal
No. 123/2014 Decided on Dt. 05.02.2014),

6. Km. Richa Pandey Vs Examination Regulatory
Authority & anr.(Special Appeal No. 117/2014
Decided on Dt. 18.02.2014),

7. Jai Kiran Singh & ors. Vs St. of UP & ors.
(Special Appeal No. 90/2018 Decided on Dt.
25.04.2018),

8. Ramesh Chandra & ors. Vs St. of UP & ors.
decided on Dt. 09.06.2020),

9. Arvind Kumar Yadav Vs St. of UP & ors.
(Special Appeal No. 988/2020 decided on Dt.
24.11.2020).
3 All. Vinay Kumar Vs. State of U.P. & Ors.
731
10. Chairman Madhyamic Shiksha Sewa Chayan
Board & anr.Vs Jhallar & anr.(Special Appeal No.
1187/2020 Decided on 13.01.2021),

11. Shiv Prasad Duvey & ors. Vs St. of Uttar
Pradesh
-
(Special Appeal Defective No.
494/2020 Decided on Dt. 08.04.22021),

12. Jitendra Sharma & anr.Vs St. of Rajasthan &
ors. (DB Civil Special Appeal (W) No. 73/2021
Decided on Dt. 02.02.2021).

(Delivered by Hon'ble Prakash Padia, J.)

1. The order dated December 17,
2021 passed by the Single Judge has been
challenged by filing present intra court
appeal.

2. The facts giving rise to this appeal
in a nutshell are that the writ-petitioner had
preferred the writ petition in question
stating therein that being fully eligible and
qualified,
he
applied
for
vacancies
advertised
by
the
respondents-Uttar
Pradesh Madhyamik Shiksha Sewa Chayan
Board, Prayagraj (for short 'the Board') for
the post of Trained Graduate Teacher being
advertisement no. 01/2021 in the month of
March, 2021. The appellant filled his
application form in respect of the vacancies
in the subject of Social Science under
O.B.C. category. Result of the aforesaid
examination was declared on October 26,
2021 wherein the cut off mark of the
petitioner's category was 462.82500. The
name of the appellant was not included in
the select list while he had answered 87
questions correctly and got 350.804 marks,
which are above than the cut off declared
by the respondents.

3. Aggrieved against the aforesaid, a
representation
was
submitted
by
the
appellant but since no response was given,
the petitioner-appellant preferred the writ
petition. When the writ petition was taken
up on November 26, 2021 the following
order was passed:-

"According to the petitioner, he
had appeared in T.G.T. examination
pursuant
to
advertisement
no.1
of
2021.According
to
final
key
answer
published by the respondents, the petitioner
would secure 350.804 marks which is more
than the cut off marks in OBC category.

Sri A.K. Singh, learned counsel for the
petitioner prays for and is granted ten days
time to seek instructions in the matter and
apprise the Court as to why the result of the
petitioner has not been declared.

Put up as fresh on 17.12.2021."

4. Pursuant to the aforesaid, counsel
for
the
respondent-board
placed
instructions before the learned Single Judge
alongwith the photocopy of the OMR sheet
of the writ-petitioner/appellant. The writpetitioner/appellant had to answer only two
subjects, namely History and Civics,
whereas besides the said two subjects he
had
also
answered
the
question
of
Economics, due to which OMR Sheet of
the writ-petitioner/appellant could not be
evaluated.

5. Taking into consideration the
instructions alongwith OMR Sheet placed
before the learned Single Judge, he was
pleased to dismiss the writ petition.

6. Aggrieved against the aforesaid,
the writ-petitioner/appellant has preferred
the present appeal.

7. It is argued by the counsel for the
appellant that the order passed by the
learned Single Judge dated December 17,
732 INDIAN LAW REPORTS ALLAHABAD SERIES
2021 is unsustainable in the eyes of law. It
is further argued that the appellant had
attempted only two subjects, i.e., History
and Civics, copy of which is annexed as
Annexure-1 to the affidavit, but this fact
has not been considered by the learned
Single Judge and merely relying upon the
ex-parte averments of the respondents, the
writ
petition
filed
by
the
writpetitioner/appellant was dismissed. It is
further argued that though on the basis of
the instructions placed by the respondents
counsel before the learned Single Judge,
the writ petition was dismissed but no
liberty was given to the counsel for the
appellant to meet the above version of the
respondents. It is further argued that no
opportunity of hearing was given to the
counsel for the writ-petitioner/appellant to
reply
the
incorrect
version
of
the
respondent.

8. On the other hand, it is argued by
Shri Anil Kumar Singh, learned counsel for
the respondent-Board that in the OMR
Sheet of the writ-petitioner/appellant apart
from the subjects namely History and
Civics, he had also answered the question
of Economics, due to which OMR Sheet of
the writ-petitioner/appellant could not be
evaluated. It is further argued by him that
as per Clause-2 of the instructions,
condition nos. 6, 9 & 12 of the
advertisement have not been followed by
the writ-petitioner/appellant, due to which
his OMR Sheet was not evaluated.

9. It is further argued by the learned
counsel for the respondents that there were
clear instructions that if any of the fields,
including the 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 mistake or
mismatch of the data furnished, the
software rejects the OMR sheet. Therefore,
a candidate has to take 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.

10.

Copy
of
the
instructions
alongwith the photocopy of OMR Sheet of
the writ-petitioner/appellant were placed
before us by the counsel for the respondentboard.

11. Heard counsel for the parties and
perused the record.

12. On perusal of photocopy of OMR
Sheet of writ-petitioner/appellant, it is clear
that apart from two subjects namely
History
and
Civics,
the
writpetitioner/appellant has answered question
no.2 of 3rd subject namely Economics.
Thus
the
writ-
petitioner
has
attempted/answered 3 subjects instead of 2
subjects. As per instructions provided by
the learned Counsel for the respondentBoard, on OMR sheet specific instructions
has been mentioned that incomplete or
wrongly filed up OMR Sheet will not be
accepted. The instructions No. 6, 9 and 12
of OMR sheet are as under:-

"6. mRrj i=d esa fn;s x;s LFkku dks gh
Hkjsa vU;= dksbZ fpUg u yxk;saA
3 All. Vinay Kumar Vs. State of U.P. & Ors.
733
9. mRrj i=d dks bysDVakfud ek/;e ls lalkf/kr
fd;k tk,xkA viw.kZ vFkok xyr rjhds ls Hkjk x;k
mRrj i=d vekU; gksxk vkSj bldk mRrjnkf;Ro
iw.kZr;k vH;FkhZ dk gksxkA

12. bl mRrj i=d ij mfpr LFkku ds
vfrfjDr dqN u fy[ksa vU;Fkk mRrj i=d vekU; dj
fn;k t;sxkA"

13. From the above instructions, it is
more than clear that the candidates were
repeatedly forewarned about taking care
while filling up the OMR answer sheet and
indicating their particulars. The reasons are
not far to understand, inasmuch as, the
OMR answer sheets are electronically
checked for the purpose of ensuring
minimum human intervention so as to
ensure secrecy and credibility of the entire
examination process. When the OMR
answer sheets are evaluated electronically,
any mistake committed by the candidate
would be detected and its treatment is
electronically fed, i.e., in case of any
discrepancy in the particulars of the
candidates indicated in the OMR answer
sheet, same are not to be evaluated.

14. The plea raised that the mistake
committed by the appellant was minor and
technical, which on the face of it may appear
to be so, however, in case the correction of
said mistake is permitted, the same would
surely compromise the secrecy of the OMR
answer sheet and the evaluation process,
inasmuch as, on a request being made to
permit correction, the OMR answer sheet
would have to be taken out from the entire
lot, the same would be corrected, resulting in
identification of the OMR answer sheet with
respect to a particular candidate and a
possibility of further tinkering with the OMR
answer sheet cannot be ruled out.

15. In the present case, the appellant
may be one candidate, however, in a given
examination there may be several such
candidates, who may claim to have
committed some mistakes in indicating the
particulars and if it is held as a matter of
principle that such mistakes in OMR sheets
must be permitted to be corrected, the same
would lead to chaos, inasmuch as, all such
candidates then would be required to be
permitted to make corrections, exposing the
entire lot of OMR answer sheets, which
consequence cannot be permitted.

16. The Hon'ble Supreme Court way
back in the year 1992 in the case of
Karnataka Public Service Commission
and others v. B.M. Vijaya Shankar and
others, AIR 1992 SC 952, held that the
Competitive examinations are required to
be conducted by the Commission for public
service in strict secrecy to get the best brain
and that the instructions contained in the
answer-sheet should be complied with in
their letter and spirit. The relevant portion
of the judgment of Hon'ble Supreme Court
in the case of Karnataka Public Service
Commission (Supra), is reproduced below:-

"Competitive examinations are
required
to
be
conducted
by
the
Commission for public service in strict
secrecy to get the best brain. Public interest
requires no compromise on it. Any
violation of it should be visited strictly.
Absence of any expectation of hearing in
matters which do not affect any interest and
call for immediate action, such as the
present one, where it would have delayed
declaration of list of other candidates which
would have been more unfair and unjust are
rare but well recognised exceptions to the
rule of natural justice. It cannot be equated
with where a student is found copying in
the examination or an inference arises
against him for copying due to similarity in
answers of number of other candidates or
734 INDIAN LAW REPORTS ALLAHABAD SERIES
he
is
charged
with
misconduct
or
misbehavior. Direction not to write roll
number was clear and explicit. It was
printed on the first page of every answer
book. Once it was violated the issue of
bonafide and honest mistake did not arise.
Its consequences, even, if not provided did
not make any difference in law. The action
could not be characterised as arbitrary. It
was not denial of equal opportunity. The
reverse may be true."

17. The sanctity of the instructions
issued for the conduct of examination and
consequence of their violation has been
dealt with by Hon'ble Supreme Court in the
case of State of Tamil Nadu and others
Vs.
G.Hemalathaa
and
Another,
reported as 2019 SCC online SC 1113,
wherein, it was inter alia laid down as
under:

"7.We have given our anxious
consideration to the submissions made by
the learned Senior Counsel for the
Respondent. The Instructions issued by the
Commission are mandatory, having the
force of law and they have to be strictly
complied with. Strict adherence to the
terms and conditions of the Instructions is
of paramount importance. The High Court
in exercise of powers under Article 226 the
Constitution
cannot
modify/relax
the
Instructions issued by the Commission.

8.
The
High
Court
after
summoning and perusing the answer sheet of
the Respondent was convinced that there was
infraction of the Instructions. However, the
High Court granted the relief to the
Respondent on a sympathetic consideration
on humanitarian ground. The judgments cited
by the learned Senior Counsel for the
Respondent in in Taherakhatoon (D) By LRs
vs. Salambin Mohammad and Chandra Singh
and Others vs. State of Rajasthan and
Another in support of her arguments that we
should not entertain this appeal in the absence
of any substantial questions of law are not
applicable to the facts of this case.

9. 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.

10. In her persuasive appeal, Ms.
Mohana sought to persuade us to dismiss the
appeal which would enable the Respondent
to compete in the selection to the post of Civil
Judge. It is a well-known adage that, hard
cases make bad law. In Umesh Chandra
Shukla v. Union of India (1985) 3 SCC 721,
Venkataramiah, J., held that:

"13.... exercise of such power of
moderation is likely to create a feeling of
distrust in the process of selection to public
appointments which is intended to be fair and
impartial. It may also result in the violation of
the principle of equality and may lead to
arbitrariness. The cases pointed out by the
High Court are no doubt hard cases, but hard
cases cannot be allowed to make bad law. In
the circumstances, we lean in favour of a
strict construction of the Rules and hold that
the High Court had no such power under the
Rules."

11. Roberts, CJ. in Caperton v.
A.T. Massey [556 U.S. 868 (2009)] held
that:

"Extreme cases often test the
bounds of established legal principles.
There is a cost to (9 of 14) [CW-
3 All. Vinay Kumar Vs. State of U.P. & Ors.
735
12323/2020] yielding to the desire to
correct the extreme case, rather than
adhering to the legal principle. That cost
has been demonstrated so often that it is
captured in a legal aphorism: "Hard cases
make bad law."

12. 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.

13.
In
view
of
the
aforementioned, the judgment of the High
Court is set aside and the appeal is
allowed."

18. The Hon'ble Supreme Court laid
down that the instructions issued are
mandatory and have to be strictly complied
with, as strict adherence to the terms and
conditions
of
the
instructions
is
of
paramount importance. Reference was also
made to the well known adage that 'hard
cases make bad law' and that any order in
favour of the candidate, who has violated
the mandatory instructions would be laying
down bad law.

19. The above emphasis laid by the
Hon'ble Supreme Court for strict adherence
to the instructions clearly applies to the
present case as well.

20.

Apart
from
the
same
a
clarification was issued by the Government
on March 5, 2021 with reference to the
recruitment process. It was mentioned
therein that in case any discrepancy is
found in the on-line application, the
candidature is liable to be rejected. The
aforesaid clarification was subject matter of
challenge before the Hon'ble Supreme
Court in Writ Petition (Civil) No. 322 of
2021 (Jyoti Yadav and another Vs. State
of U.P. and others), whereby bunch of
petitions were dismissed vide order dated
April 8, 2021. The clarification dated
March 5, 2021 was upheld. It is observed in
the aforesaid order that for the mistakes
committed by individual candidates, the
entire process of selection may not be
delayed and put to prejudice. The norms
prescribed to have definiteness in the
process cannot be held to be arbitrary or
irrational. Paragraph 15 of the aforesaid
judgement is reproduced below:-

"If,
at
every
juncture,
any
mistakes by the candidates were to be
addressed and considered at individual
level, the entire process of selection may
stand delayed and put to prejudice. In order
to have definiteness in the matter, certain
norms had to be prescribed and prescription
of such stipulations cannot be termed to be
arbitrary or irrational. Every candidate was
put to notice twice over, by the Guidelines
and the Advertisement."

21. This issue has also been examined
by the Courts time and again.

22. In Special Appeal No. 834 of
2013 (Ram Manohar Yadav v. State of
U.P. and others) decided on May 30,
2013, the Division Bench of this Court
observed as follows:-

"We are not inclined to interfere
in this special appeal because interference
in such matters would result in thoroughly
incompetent or utterly negligent persons
736 INDIAN LAW REPORTS ALLAHABAD SERIES
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 maturity and learns to
be
more
careful
in
filling
up
the
applications for jobs. The appeal is
therefore, dismissed."

23. In Special Appeal Defective No.
123 of 2014 (Arti Verma vs. State of U.P.
and others) decided on February 05,
2014, the Division Bench of this Court
observed as follows:-

"The appellant made an on-line
application for engagement as Shiksha
Anudeshak (Arts) for 2012-13 on a contract
basis. In the application, the appellant
claimed to have belonged to the Freedom
Fighters' category, which was admittedly
not the category to which the appellant
could have claimed. The name of the
appellant was shown in the select list of
candidates belonging to the Freedom
Fighters' Category. The Secretary to the
State
Government
rejected
the
representation filed by the appellant for
correcting the error in the on line
application. The learned Single Judge
dismissed the petition filed by the appellant
under Article 226 of the Constitution for
setting aside the order passed by the
Secretary noting that under the declaration
given by the appellant while filling up the
application,
it
was
stated
that
the
candidature could be rejected if any
discrepancy was found. The learned Single
Judge has also relied upon a judgment of
the Division Bench rendered in Ram
Manohar Yadav Vs. State of U.P. & three
Ors., (Special Appeal-834 of 2013).

In the judgment of the Division
Bench in Ram Manohar Yadav (supra) it
was observed that where an applicant has
shown his incompetence or negligence in
not not even correctly filling up a simple on
line application form for employment,
interference of the High Court under
Article 226 of the Constitution was not
warranted.

However,
learned
counsel
appearing on behalf of the appellant relied
upon a judgment of a Division Bench in
Puspraj Singh Vs. State of U.P. & Ors.,
(Special Appeal-75 of 2013). That is a case
where the appellant had wrongly described
himself as a female candidate. On these
facts, the Division Bench accepted the
contention that human error had caused an
incorrect on line entry, since there was no
reason for the appellant to make such a
declaration and that he did not stand to gain
anything by making such an incorrect
entry. In the present case, the appellant
claimed the benefit of Freedom Fighters
category. The contention that this was as a
result of an error committed by the
Computer Operator cannot simply be
accepted for the reason that the appellant
would necessarily be responsible for any
statement which he made on line. If the
Courts were to accept such a plea of the
appellant, that would result in a situation
where the appellant would get the benefit
3 All. Vinay Kumar Vs. State of U.P. & Ors.
737
of a wrong category if the wrong claim
went unnoticed and if noticed, the appellant
could always turn around and claim that
this was as a result of human error. Each
candidate
necessarily
must
bear
the
consequences of his failure to fill up the
application form correctly. No fault can,
therefore, be found in rejecting the
application
for
correction
when
the
candidate himself has failed to make a
proper disclosure or where, as in the
present case, the application is submitted
under a wrong category. Interference of the
High Court under Article 226 of the
Constitution is clearly not warranted in
such matters as it creates grave uncertainty
since the selection process cannot be finally
completed. Moreover, in the present case,
the appointment was of a contractual nature
for a period of eleven months. Hence,
considering
the
matter
from
any
perspective, the learned Single Judge was
not in error in dismissing the petition under
Article 226 of the Constitution.

The
Special
Appeal
is,
accordingly, dismissed."

24. In Special Appeal Defective No.
117 of 2014 (Km. Richa Pandey vs.
Examination Regulatory Authority and
another) decided on February 18, 2014,
the Division Bench of this Court observed
as follows:-

"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 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.

The special appeal is dismissed."

25. A similar controversy has also
been dealt by this Court in Special
Appeal No. 90 of 2018 decided on April
25, 2018 (Jai Karan Singh and 52 others
v. State of U.P. and others). The relevant
portion of the aforesaid judgment reads as
follows:-

"The
writ
petitioners
had
admittedly given incorrect information in
the 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
738 INDIAN LAW REPORTS ALLAHABAD SERIES
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 72, 876 OMR
answer-sheets. 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."

26. Similar view has also been taken
by the another Division Bench in Special
Appeal No.247 of 2020 decided on June
09, 2020 (Ramesh Chandra and others
vs. The State of U.P. and others). The
following was observed:-

"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."

27. In Arvind Kumar Yadav Vs.
The State of U.P. and another passed in
Special Appeal Defective No. 988 of 2020
decided on November 24, 2020, the
Division Bench of this Court observed as
follows:-

"Factual matrix of the case is that
the appellant-petitioner faced a process of
selection
by
appearing
in
TGT
Examination-2016.
The
examination
aforesaid was conducted by use of Optical
Mark Recognition (OMR) sheet. The
appellant-petitioner failed to fill in the
sheet concerned properly. He therefore,
made a request to cure the deficiency
manually. The respondents refused for the
same and, therefore, a petition for writ was
filed that came to be dismissed under the
order impugned.

Learned single Bench held that
the instructions contained in OMR sheet
are to be adhered strictly and no deficiency
could have been satisfied manually.

In appeal, the argument advanced
by learned counsel appearing on behalf of
the
appellant-petitioner
is
that
the
appellant-petitioner inadvertently caused an
error and that deserves to be rectified. The
appellant-petitioner
should
have
been
allowed to cure the deficiency manually.
We do not find any merit in the argument
advanced.

The OMR sheet is to be examined
electronically
by
using
artificial
intelligence and in that no deficiency could
have been satisfied manually.
3 All. Vinay Kumar Vs. State of U.P. & Ors.
739

In view of it, we do not find any
just reason to interfere in the matter. The
appeal is dismissed."

28. In Special Appeal Defective No.
1187 of 2020 (Chirman Madhyamic
Shiksha
Sewa
Chayan
Board
and
another Vs. Jhallar and another) decided
on January 13, 2021, the Division Bench
of this Court observed as follows:-

"For selection to the post of
Trained Graduate Teacher or Post Graduate
Teachers, the seriousness needs to be
attached in case, subject code is not marked
in the OMR sheet. Such errors cannot be
ignored to extend the benefit to defaulting
candidates. It is more so when now the
process involve technology to complete it
expeditiously. The acceptance of the prayer
of the petitioner/ non-appellant would have
delayed the selection. It is more so when
with declaration of result, the process for
appointment has been carried out and
would be effected if the plea of the
petitioner/ non-appellant is accepted. It is
not that petitioner/ non-appellant is not
educated enough to read the instruction. It
is when the selection was for the post of
P.G.T. "

29. While deciding the aforesaid
Special Appeal, judgment given in the case
of Jai Karan Singh's case (Supra) was also
taken into consideration.

30. A similar controversy has also
been raised before the Division Bench of
this Court in the case of Shiv Prasad
Duvey and others vs. State of U.P. and
another, decided on April 08, 2021,
Special Appeal Defective No.494 of 2020.
The arguments raised before the Division
Bench was that there was a mistake with
regard to the circles darkened/filling up the
bubbles/circles
relating
to
their
Roll
number in the OMR sheet. The aforesaid
argument was dealt in paragraph 11 of the
aforesaid order which is quoted below:-

"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.

31. A Division Bench of the
Rajasthan High Court (Jodhpur Bench) has
also taken similar view in the case of
Jitendra Sharma and Another Vs. State
of Rajasthan and Others. : D.B.Civil
Special Appeal (W) No. 73/2021 decided
on February 2, 2021, the relevant portion
of the aforesaid judgment reads as follows:-

"3. Precisely, the case set out by
the appellants before the learned Single
Judge was that it was only a bonafide
mistake on their part that the column meant
for
corresponding
question
booklet
remained unfilled and therefore, on that
account, the refusal of the respondents to
evaluate the OMR answer sheets, is
absolutely unjustified. It was contended
that when the provision has been made for
evaluating
the
answer
sheets
while
deducting 5 marks in case of wrong
mentioning
of
roll
number,
it
was
incumbent upon the respondents to evaluate
the answer sheets while permitting the
appellants to rectify the error crept in.

4. Learned counsel appearing for
the appellants contended that the appellants
were not aware about issuance of two sets
740 INDIAN LAW REPORTS ALLAHABAD SERIES
of question booklet inasmuch as, they were
issued
set
'B'
of
question
booklet.
Reiterating the contention raised before the
learned Single Judge, learned counsel
submitted that in case of mentioning of
wrong roll number, the mistake is permitted
to be rectified by deducting 5 marks, there
was no reason not to permit the appellants
to rectify the mistake of non indication of
the set of question booklet opted.

5. Indisputably, before attempting
the question paper, the candidates were
expected to read the instructions carefully.
Unless question booklet 'A' or 'B' opted by
the appellants is reflected in the OMR
sheets, the answers given could not have
been
evaluated
by
OMR
software
application. The appellants, who were
negligent in not reading the instructions
properly and not filling the column meant
for corresponding question booklet set,
could not have been granted indulgence to
fill up the column in the OMR sheets
subsequently. If the OMR sheets are
permitted to be opened and corrected in this
manner, it may result in making fairness
and transparency in the examination
process questionable. For the parity of
reasons, the OMR sheet cannot be
permitted to be evaluated physically either.

6.
For
the
aforementioned
reasons, we are in agreement with the view
taken by the learned Single Judge."

32. In view of the discussion, 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 hands-off approach
by the Writ Court is justified, hence we
find no good reason to interfere in the
matter.
Consequently,
the
appeal
is
dismissed.
----------
(2022)03ILR A740
APPELLATE JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 22.02.2022

BEFORE

THE HON'BLE RAJESH BINDAL, C.J.
THE HON'BLE JASPREET SINGH, J.

Special Appeal No. 45 of 2022
arising out of Writ -A No. 377 of 2022

Kanhaiya Bux Singh ...Appellant
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Appellant:
Sri Suresh Sharma

Counsel for the Respondents:
Sri H.P. Srivastava, A.C.G.C., Sri Rahul
Shukla

(A) Civil Law - Constitution of India,
1950 - Article 14, 226 - - Appellant
moved belated claim - for arrears of
salary - for a particular period of time
after retirement of 6 years - rejected
being not entitled - writ petition -
dismissed on the ground of delay &
laches - Special Appeal - keeping in
view of the authoritative enunciation of
law & a disputed question of fact
cannot be gone into writ jurisdiction -
appeal accordingly, dismissed.(Para - 4,
20, 21)

Special Appeal dismissed. (E-11)

List of Cases cited:-

1. St. of Uttaranchal & anr.Vs Sri Shiv Charan
Singh Bhandari & ors. (2013 (6) SLR 629),

2. U.O.I. & ors. Vs M. K. Sarkar, (2010) 2 SCC
59

3. St. of Orissa Vs Arun Kumar Patnaik, (1976) 3
SCC 579