UNION OF INDIA versus MAHENDRA SINGH

UNION OF INDIA

MAHENDRA SINGH

(Civil Appeal No. 4807 of 2022)

JULY 25, 2022

[HEMANT GUPTA AND VIKRAM NATH, JJ.]

Service Law – Condition provided in the advertisement thatthe application has to be in the language for which the candidateswant to attempt the question paper – Violation of – Effect – Writpetitioner appeared for the written test and wrote the paragraph inHindi on the OMR sheet, though in the application form, he hadwritten it in English – Candidature rejected – Decision set aside bySingle Judge, affirmed by Division Bench – On appeal, held: Thecondition that language in the application form shall be used forthe purposes of OMR examination is for the reason that in case anydispute arises in respect of identity of the candidate, the same canbe verified from the two handwritings – Once the writ petitionerhas filled the application form in English, having also signed inEnglish, it cannot be said to be an inadvertent mistake when he haswritten the para in Hindi – Such writing in different languageviolates the instruction clearly mentioned in the advertisement – Ifa particular procedure in filling up the application form isprescribed, the application form should be filled up following thatprocedure alone – Candidature of writ petitioner rightly rejectedby appellants – Order of High Court set aside.

Allowing the appeal, the Court

HELD: The condition that language in the application formshall be used for the purposes of OMR examination is for thereason that in case any dispute arises in respect of identity of thecandidate, the same can be verified from the two handwritings.The sole reasoning given by the Division Bench of the High Courtof time gap between the filling up of the application form and theexamination, and hence inadvertent filling up of OMR sheet inHindi by the writ petitioner is based on surmises and conjectures.Once the writ petitioner has filled the application form in English,having also signed in English, it cannot be said to be an inadvertent

[2022] 6 S.C.R.

Amistake when he has written the para in Hindi. Such writing indifferent language violates the instruction clearly mentioned inthe advertisement. The language chosen is relevant to ensurethat the candidate who has filled up the application form aloneappears in the written examination to maintain probity. Theanswer sheets have to be in the language chosen by the candidateBin the application form. If particular procedure in filling up theapplication form is prescribed, the application form should befilled up following that procedure alone. Since the advertisementcontemplated the manner of filling up of the application form andalso the attempting of the answer sheets, it has to be done in theCmanner so prescribed. Since the writ petitioner has used differentlanguage for filling up of the application form and the OMR answerbook, therefore, his candidature was rightly rejected by theappellants. The order passed by the High Court is set aside. Thewrit petition is dismissed. [Paras 12-14, 17-19][1008-D-E, F-G;1009-A-B; 1010-A-C]D

State of Tamil Nadu & Ors. v. G. Hemalathaa & Anr.(2020) 19 SCC 430; Ajay Kumar Mishra v. Union ofIndia & Ors. (2016) SCC OnLine Del 6553; RamKumar Gijroya v. Delhi Subordinate Services SelectionBoard & Anr. (2016) 4 SCC 754; Avtar Singh v. UnionEof India & Ors. (2016) 8 SCC 471 : [2016] 7 SCR 445- distinguished.

Chandra Kishore Jha v. Mahavir Prasad & Ors. (1999)8 SCC 266 : [1999] 2 Suppl. SCR 754; Cherukuri Maniv. Chief Secretary, Government of Andhra Pradesh &FOrs. (2015) 13 SCC 722 : [2014] 6 SCR 750; MunicipalCorporation of Greater Mumbai (MCGM) v. AbhilashLal & Ors. (2020) 13 SCC 234 : [2019] 14 SCR 659;OPTO Circuit India Limited v. Axis Bank & Ors. (2021)6 SCC 707 – relied on.

GNazir Ahmad v. King-Emperor (1936) SCC OnLine PC41 – referred to.

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 4807of 2022.

From the Judgment and Order dated 04.04.2019 of the High Courtof Judicature at Allahabad in Special Appeal Defective No. 303 of 2019.

Ms. Madhvi Divan, ASG, Amrish Kumar, Ms. Priyanka Das,Ms. Nidhi Khanna, Ms. Vimla Sinha, Ms. Manasi Kumari, Raj BahadurYadav, Advs. for the Appellants.

Prashant Bhushan, Rahul Gupta, Advs. for the Respondent.

The Judgment of the Court was delivered by

HEMANT GUPTA, J.

1. The challenge in the present appeal is to an order passed by theDivision Bench of the High Court of Allahabad whereby appeal filed bythe appellants was dismissed. Such appeal was directed against an orderpassed by the learned Single Bench of the High Court, wherein, an orderdated 27.1.2017 passed by the appellants was quashed and thus,consequently, the candidature of the respondent[1] was to be consideredand accepted by the appellants.

2. The Employment Notice No. 1/2011 was published to fill up11952 posts of Constables in the Railway Protection Force[2]. The processof selection comprised of written examination consisting of 120 multiplechoice objection type questions of one mark each and of 90 minutesduration. The candidates had to obtain at least 35% marks (30% in thecase of Scheduled Caste and Scheduled Tribe candidates) in the writtenexamination for being considered for other Test such as PhysicalEfficiency Test[3]. Para 8 Clause of the Advertisement gives therequirement of an application form and also that the said application

1 For short, the ‘writ petitioner’

2 For short, the ‘RPF’

3 For short, the ‘PET’

Ashould be filled up by the candidates in their own handwriting, in Hindi orEnglish only. The applications were required to be accompanied by aself-attested matriculation certificate as proof of educational qualificationand age. The relevant conditions read as under:

“8. xxxxxx

B. Application form’ a) The format of the application form is givenin Annexure ‘A’. Application forms can be downloaded from theofficial website of Indian Railways (www.indlanrailways.gov.in)or taken from the Employment News or from this advertisementand submitted on A-4 size bond paper, using one side only andCsent to the Nodal Chief Security Commissioner corresponding tothe language chosen for the Question Paper. Only one applicationneed be sent. The addresses of the Nodal Chief SecurityCommissioners, the details of the person in whose favour the Draft/IPO shall be drawn and the place where payable are given below.The languages for the question paper are also shown against eachDNodal Chief Security Commissioner for the convenience of theapplicants.

xxxxxx

(e) Applications should be filled by the candidates in their ownhandwriting, in Hindi or English only. Left Hand thumb impressionin the case of Male applicants and Right-Hand thumb impressionin case of Female applicants shall be affixed in the box given atthe bottom of the application. Applications signed in capital letters/spaced-out letters will be treated as invalid. Applications with

correction or overwriting or smudged thumb impression may berejected.

xxxx

9 (e) Impersonation, if any, detected at any stage of the recruitment,may result in initiating criminal cases against the applicant and theimpersonator as well as canceling the candidature of the applicant.”

3. The writ petitioner belongs to Other Backward Class categoryand has filled up his application form along with Indian Postal Orderdated 5.3.2011 in English. His signatures are in English consisting of twoletters “M” and “S”. Such application form is accompanied with self-attested marksheet of high school examination and other certificates.All such documents are self-attested and signed in Hindi.

4. The writ petitioner appeared for the written test on 23.6.2013where he wrote the paragraph in Hindi on the OMR sheet, though in theapplication form, he had written it in English. He signed in Hindi then.Subsequently, when the writ petitioner appeared for the PET on 7.3.2014,he again signed as “M S”.

5. The appellants obtained the opinion of the Government Examinerof Questioned Documents[4] on 2.9.2014. The expert’s opinion was thatthe signatures on the OMR sheet and on the xerox copies of thecertificates are by one and the same person. It was also opined that it isnot possible to express any opinion in respect of para written in Hindi inthe OMR sheet and in English in the application form.

6. Since the writ petitioner was not appointed, though he hadobtained 73.32 marks against the cut-off of 58.5 marks in the OBCcategory, he filed writ petition before the High Court of Allahabad. Anorder was passed by the High Court on 19.10.2016 wherein the matterwas remitted to the appellants to reconsider the entire issue, includingthumb impression and finger prints that have taken place at various stagesof the examination. An opportunity was given to the writ petitioner tomake fresh application which shall be heard by the Chief SecurityCommissioner. The candidature of the writ petitioner was rejected on27.1.2017 by the Competent Authority, inter alia, on the followinggrounds:

4 For short, the ‘GEQD’

“In compliance to the order of the Hon’ble High Court, the dossierconcerned to the petitioner, was scanned and the petitioner wasalso shown the same. The record signature and handwriting ofthe petitioner on the following documents have been examined bythe Government Examiner of Questioned Documents: -

As per the expert opinion signature/handwriting made on thedocuments marked as Q-1 and 5-1 to 5-7 are same, but signature/handwriting made on the documents marked as Q-2 & Q-3 aredifferent from the signature/handwriting made on the documentsmarked as Q-1 and S-1 to S-7. So far as signature/hand writingmade on the record marked Q-1/1 and Q-3/1 are concerned, thesignature/hand writing made on these documents were checkedintensively and on comparing the above mark with signature/handwriting made on the records, it was found that the petitionerhas filled in his application in English version and on the OMRsheet he has used Hindi version to record his writing which isviolation of the instruction, given in para-3 of OMR sheet. In para-3 of the OMR sheet it had been instructed that the same languageshould be used to write on OMR sheet in own writing, which hadbeen adopted to filled in the application form. The matching ofwriting of the petitioner failed due to mistake of the petitionerhimself since he used two languages. Similarly, the matching ofthe signatures failed, since the petitioner did his signature on theapplication form in English whereas on the OMR Sheet in Hindi,which is fault of the petitioner. The petitioner was clarified byshowing this difference. As such, the petitioner could not produceany solid base to disagree with the opinion of the expert.”

7. The writ petitioner again filed writ petition challenging thedecision of the Competent Authority. Said decision was set aside by thelearned Single Bench of the High Court on 20.2.2019. The said order

was affirmed by the Division Bench of the High Court vide the orderimpugned in the present appeal.

8. The requirement to write paragraph in the application formwas to compare the handwriting of the candidate in the event of anydispute of identity which may arise as to whether the same person hasappeared for the written examination who had filled up the applicationform. The High Court has basically relied upon the fact that from theopinion of the handwriting expert, there is no proof of charge ofimpersonation. However, it was held that the application form had beenfilled up in the year 2011 whereas the examination took place in the year2013, therefore, the writ petitioner had filled up Column No. 3 of theOMR sheet in Hindi inadvertently on account of time gap between thefilling up of the application form and the examination.

9. The question required to be examined herein is to the effect ofviolation of the condition provided in the advertisement that the applicationhas to be in the language for which the candidates want to attempt thequestion paper, and what is the effect of using different language in theapplication form than the OMR sheet.

10. Ms. Madhavi Divan, learned ASG has argued that the use ofdifferent language in the application form than what is used in the OMRsheet by itself entails rejection of the candidature. Ms. Divan has referredto judgment reported as State of Tamil Nadu & Ors. v. G.Hemalathaa & Anr.[5]. On the other hand, Mr. Prashant Bhushan, learnedcounsel for the writ petitioner argued that use of different language isonly an irregularity, though it is admitted that the purpose of using thesame language is to avoid impersonation and to ascertain the genuinenessof the candidate. Mr. Bhushan has referred to judgments in Ajay KumarMishra v. Union of India & Ors.[6], Ram Kumar Gijroya v. DelhiSubordinate Services Selection Board & Anr.[7] and Avtar Singh v.Union of India & Ors.[8].

11. We have heard learned counsel for the parties and find thejudgments referred to by Ms. Divan and Mr. Bhushan are not applicableto the facts of the present case. In G. Hemalathaa, the condition that

5 (2020) 19 SCC 430

6 2016 SCC OnLine Del 6553

7 (2016) 4 SCC 754

8 (2016) 8 SCC 471

Ausage of whitener, sketch pens, pencil, colour pencils, multi-colour penswould lead to invalidation of the answer book. In these circumstances, itwas held that violation of such mandatory conditions by the candidatedisentitles for declaration of her result for appointment to the post ofCivil Judge. The judgment in Ajay Kumar Mishra of the Delhi HighCourt arises out of the fact of cancellation of the candidature on accountBof furnishing incorrect information about the actual date of birth of thewrit petitioner. In Ram Kumar Gijroya, the candidate had submittedhis certificate of being belonging to Other Backward Class after the lastdate of submission of the application. Avtar Singh is case where therewas suppression of material information regarding the criminal cases inCwhich the candidate may be involved. Thus, all these cases are on theirown facts, not involving similar issue as arising in the present appeal.12. In the present case, more than 11,000 posts were advertisedfor filling up of the posts of Constables in the RPF. Though the numberof candidates who appeared in response to such advertisement is notDavailable, but generally, it is matter of common experience thatcandidates much more than the posts advertised are the aspirants forsuch posts. The condition that language in the application form shall beused for the purposes of OMR examination is for the reason that in caseany dispute arises in respect of identity of the candidate, the same canbe verified from the two handwritings. Still further, the question papersEare required to be set up in the languages other than Hindi and Englishas well. The applications in different languages were to be sent to differentNodal Officers in Gorakhpur, Kolkata, Bhubaneshwar and Chennai. Stillfurther, the OMR answer sheet is bilingual, in Hindi and English, but itwould be in some other language if candidate has chosen languageFother than English or Hindi.

13. The sole reasoning given by the Division Bench of the HighCourt of time gap between the filling up of the application form and theexamination, and hence inadvertent filling up of OMR sheet in Hindi bythe writ petitioner is based on surmises and conjectures. Once the writGpetitioner has filled the application form in English, having also signed inEnglish, it cannot be said to be an inadvertent mistake when he haswritten the para in Hindi. Such writing in different language violates theinstruction clearly mentioned in the advertisement.

14. The argument of Mr. Bhushan that use of different languageHis not followed by any consequence and, therefore, cannot be said to be

mandatory is not tenable. The language chosen is relevant to ensure thatthe candidate who has filled up the application form alone appears in thewritten examination to maintain probity. The answer sheets have to bein the language chosen by the candidate in the application form. It is wellsettled that if particular procedure in filling up the application form isprescribed, the application form should be filled up following thatprocedure alone. This was enunciated by Privy Council in the NazirAhmad v. King-Emperor[9], wherein it was held that “that where poweris given to do certain thing in certain way the thing must be done inthat way or not at all. Other methods of performance are necessarilyforbidden.”

15. three Judge Bench of this Court in judgment reported asChandra Kishore Jha v. Mahavir Prasad & Ors.[10], held as under:

“17....................It is well-settled salutary principle that if astatute provides for thing to be done in particular manner, thenit has to be done in that manner and in no other manner. (See withadvantage: Nazir Ahmad v. King Emperor [(1935-36) 63 IA 372: AIR 1936 PC 253 (II)] , Rao Shiv Bahadur Singh v. State ofV.P. [AIR 1954 SC 322 : 1954 SCR 1098] , State ofU.P. v. Singhara Singh [AIR 1964 SC 358 : (1964) 1 SCWR 57].) An election petition under the rules could only have beenpresented in the open court up to 16-5-1995 till 4.15 p.m. (workinghours of the Court) in the manner prescribed by Rule 6 (supra)either to the Judge or the Bench as the case may be to save theperiod of limitation. That, however, was not done................”

16. The said principle has been followed by this Court in CherukuriMani v. Chief Secretary, Government of Andhra Pradesh & Ors.[11]wherein this Court held as under:

“14. Where the law prescribes thing to be done in particularmanner following particular procedure, it shall be done in thesame manner following the provisions of law, without deviatingfrom the prescribed procedure.............”

17. Similarly, this Court in Municipal Corporation of GreaterMumbai (MCGM)v. Abhilash Lal & Ors.[12] and OPTO Circuit India

9 1936 SCC OnLine PC 4110 (1999) 8 SCC 266

11 (2015) 13 SCC 722

12 (2020) 13 SCC 234

ALimited v. Axis Bank & Ors.[13] has followed the said principle. Sincethe advertisement contemplated the manner of filling up of the applicationform and also the attempting of the answer sheets, it has to be done inthe manner so prescribed. Therefore, the reasoning given by the DivisionBench of the High Court that on account of lapse of time, the writpetitioner might have attempted the answer sheet in different languageBis not justified as the use of different language itself disentitles the writpetitioner from any indulgence in exercise of the power of judicial review.

18. Since the writ petitioner has used different language for fillingup of the application form and the OMR answer book, therefore, hiscandidature was rightly rejected by the appellants.

19. Therefore, the order passed by the High Court cannot besustained in law, the same is set aside. The writ petition is dismissed.Consequently, the appeal is allowed.

DDivya Pandey

Appeal allowed.