UNION OF INDIA & ORS. VERSUS MAHENDRA SINGH

UNION OF INDIA & ORS. VERSUS MAHENDRA SINGH


REPORTABLE

Landmark Cases of India / सुप्रीम कोर्ट के ऐतिहासिक फैसले

IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 4807 OF 2022
(ARISING OUT OF SLP (CIVIL) NO. 19886 OF 2019)
UNION OF INDIA & ORS. .....APPELLANT(S)
VERSUS
MAHENDRA SINGH .....RESPONDENT(S)
J U D G M E N T
HEMANT GUPTA, J.
1. The challenge in the present appeal is to an order passed by the
Division Bench of the High Court of Allahabad whereby appeal filed
by the appellants was dismissed. Such appeal was directed against
an order passed by the learned Single Bench of the High Court,
wherein, an order dated 27.1.2017 passed by the appellants was
quashed and thus, consequently, the candidature of the respondent1
was to be considered and accepted by the appellants.
2. The Employment Notice No. 1/2011 was published to fill up 11952
posts of Constables in the Railway Protection Force2
. The process of
selection comprised of written examination consisting of 120
multiple choice objection type questions of one mark each and of 90
minutes duration. The candidates had to obtain at least 35% marks
1 For short, the ‘writ petitioner’
2 For short, the ‘RPF’
1
(30% in the case of Scheduled Caste and Scheduled Tribe
candidates) in the written examination for being considered for
other Test such as Physical Efficiency Test3
. Para 8 Clause B of the
Advertisement gives the requirement of an application form and
also that the said application should be filled up by the candidates in
their own handwriting, in Hindi or English only. The applications
were required to be accompanied by a self-attested matriculation
certificate as proof of educational qualification and age. The
relevant conditions read as under:
“8. xxx xxx
B. Application form' a) The format of the application form is
given in Annexure 'A'. Application forms can be downloaded
from the official website of Indian Railways
(www.indlanrailways.gov.in) or taken from the Employment
News or from this advertisement and submitted on A-4 size
bond paper, using one side only and sent to the Nodal Chief
Security Commissioner corresponding to the language chosen
for the Question Paper. Only one application need be sent.
The addresses of the Nodal Chief Security Commissioners, 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 each
Nodal Chief Security Commissioner for the convenience of the
applicants.
Group
No.
Address of the
Nodal Chief
Security
Commissioner
Draft/IPO
drawn in
favour of
Place
where
Payable
Languages
for
question
paper
1 The Chief Security
Commissioner,
North Eastern
Railway, Post Box
Number-2 Head
Post Office,
Gorakhpur, Uttar
Pradesh.
The
Financial
Advisor
and Chief
Accounts
Officer,
North
Eastern
Railway.
Gorakhpur
, UP
Hindi,
English,
Urdu,
Punjabi,
Gujarati.
3 For short, the ‘PET’
2
xx xx xx
(e) Applications should be filled by the candidates in their
own handwriting, in Hindi or English only. Left Hand thumb
impression in the case of Male applicants and Right-Hand
thumb impression in case of Female applicants shall be
affixed in the box given at the 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 be rejected.
xx xx xx
9 (e) Impersonation, if any, detected at any stage of the
recruitment, may result in initiating criminal cases against the
applicant and the impersonator as well as canceling the
candidature of the applicant.”
3. The writ petitioner belongs to Other Backward Class category and
has filled up his application form along with Indian Postal Order
dated 5.3.2011 in English. His signatures are in English consisting of
two letters “M” and “S”. Such application form is accompanied with
a 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 23.6.2013 where
he wrote the paragraph in Hindi on the OMR sheet, though in the
application 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 Examiner of
Questioned Documents4
 on 2.9.2014. The expert's opinion was that
4 For short, the ‘GEQD’
3
the signatures on the OMR sheet and on the xerox copies of the
certificates are by one and the same person. It was also opined that
it is not possible to express any opinion in respect of para written in
Hindi in the OMR sheet and in English in the application form.
6. Since the writ petitioner was not appointed, though he had obtained
73.32 marks against the cut-off of 58.5 marks in the OBC category,
he filed a writ petition before the High Court of Allahabad. An order
was passed by the High Court on 19.10.2016 wherein the matter
was remitted to the appellants to reconsider the entire issue,
including thumb impression and finger prints that have taken place
at various stages of the examination. An opportunity was given to
the writ petitioner to make a fresh application which shall be heard
by the Chief Security Commissioner. The candidature of the writ
petitioner was rejected on 27.1.2017 by the Competent Authority,
inter alia, on the following grounds:
“In compliance to the order of the Hon'ble High Court, the
dossier concerned to the petitioner, was scanned and the
petitioner was also shown the same. The record signature
and handwriting of the petitioner on the following documents
have been examined by the Government Examiner of
Questioned Documents: -
1. Q-1 & Q-1/1 = Signature and Hand writing made
on OMR
2. Q-2 = Signature made on PET proforma
3. Q-3 & Q-3/1 = Signature and Hand writing made
on Application form
4. S-1 to S-7 = Signature made at the time of
viva-voce
As per the expert opinion signature/handwriting made on the
documents marked as Q-1 and 5-1 to 5-7 are same, but
4
signature/handwriting made on the documents marked as Q-2
& Q-3 are different from the signature/handwriting made on
the documents marked as Q-1 and S-1 to S-7. So far as
signature/hand writing made on the record marked Q-1/1 and
Q-3/1 are concerned, the signature/hand writing made on
these documents were checked intensively and on comparing
the above mark with signature/handwriting made on the
records, it was found that the petitioner has filled in his
application in English version and on the OMR sheet he has
used Hindi version to record his writing which is violation of
the instruction, given in para-3 of OMR sheet. In para-3 of the
OMR sheet it had been instructed that the same language
should be used to write on OMR sheet in own writing, which
had been adopted to filled in the application form. The
matching of writing of the petitioner failed due to mistake of
the petitioner himself since he used two languages. Similarly,
the matching of the signatures failed, since the petitioner did
his signature on the application form in English whereas on
the OMR Sheet in Hindi, which is fault of the petitioner. The
petitioner was clarified by showing this difference. As such,
the petitioner could not produce any solid base to disagree
with the opinion of the expert.”
7. The writ petitioner again filed a writ petition challenging the
decision of the Competent Authority. Said decision was set aside by
the learned 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
order impugned in the present appeal.
8. The requirement to write a paragraph in the application form was to
compare the handwriting of the candidate in the event of any
dispute of identity which may arise as to whether the same person
has appeared for the written examination who had filled up the
application form. The High Court has basically relied upon the fact
that from the opinion of the handwriting expert, there is no proof of
charge of impersonation. However, it was held that the application
5
form had been filled up in the year 2011 whereas the examination
took place in the year 2013, therefore, the writ petitioner had filled
up Column No. 3 of the OMR sheet in Hindi inadvertently on account
of time gap between the filling up of the application form and the
examination.
9. The question required to be examined herein is to the effect of
violation of the condition provided in the advertisement that the
application has to be in the language for which the candidates want
to attempt the question paper, and what is the effect of using
different language in the application form than the OMR sheet.
10. Ms. Madhavi Divan, learned ASG has argued that the use of different
language in the application form than what is used in the OMR sheet
by itself entails rejection of the candidature. Ms. Divan has referred
to a judgment reported as State of Tamil Nadu & Ors. v. G.
Hemalathaa & Anr.
5
. On the other hand, Mr. Prashant Bhushan,
learned counsel for the writ petitioner argued that use of a different
language is only an irregularity, though it is admitted that the
purpose of using the same language is to avoid impersonation and
to ascertain the genuineness of the candidate. Mr. Bhushan has
referred to judgments in Ajay Kumar Mishra v. Union of India &
Ors.
6
, Ram Kumar Gijroya v. Delhi Subordinate Services
Selection Board & Anr.
7
 and Avtar Singh v. Union of India &
Ors.
8
.
5 (2020) 19 SCC 430
6 2016 SCC OnLine Del 6553
7 (2016) 4 SCC 754
8 (2016) 8 SCC 471
6
11. We have heard learned counsel for the parties and find the
judgments referred to by Ms. Divan and Mr. Bhushan are not
applicable to the facts of the present case. In G. Hemalathaa, the
condition that usage of whitener, sketch pens, pencil, colour pencils,
multi-colour pens would lead to invalidation of the answer book. In
these circumstances, it was held that violation of such mandatory
conditions by the candidate disentitles for declaration of her result
for appointment to the post of Civil Judge. The judgment in Ajay
Kumar Mishra of the Delhi High Court arises out of the fact of
cancellation of the candidature on account of furnishing incorrect
information about the actual date of birth of the writ petitioner. In
Ram Kumar Gijroya, the candidate had submitted his certificate of
being belonging to Other Backward Class after the last date of
submission of the application. Avtar Singh is a case where there
was suppression of material information regarding the criminal
cases in which the candidate may be involved. Thus, all these cases
are on their own facts, not involving similar issue as arising in the
present appeal.
12. In the present case, more than 11,000 posts were advertised for
filling up of the posts of Constables in the RPF. Though the number
of candidates who appeared in response to such advertisement is
not available, but generally, it is a matter of common experience
that candidates much more than the posts advertised are the
aspirants for such posts. The condition that language in the
application form shall be used for the purposes of OMR examination
7
is for the reason that in case any dispute arises in respect of identity
of the candidate, the same can be verified from the two
handwritings. Still further, the question papers are required to be set
up in the languages other than Hindi and English as well. The
applications in different languages were to be sent to different Nodal
Officers in Gorakhpur, Kolkata, Bhubaneshwar and Chennai. Still
further, the OMR answer sheet is bilingual, in Hindi and English, but
it would be in some other language if a candidate has chosen a
language other than English or Hindi.
13. The sole reasoning given by the Division Bench of the High Court of
time gap between the filling up of the application form and the
examination, and hence inadvertent filling up of OMR sheet in Hindi
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
mistake when he has written the para in Hindi. Such writing in
different language violates the instruction clearly mentioned in the
advertisement.
14. The argument of Mr. Bhushan that use of different language is not
followed by any consequence and, therefore, cannot be said to be
mandatory is not tenable. The language chosen is relevant to
ensure that the candidate who has filled up the application form
alone appears in the written examination to maintain probity. The
answer sheets have to be in the language chosen by the candidate
8
in the application form. It is well settled that if a particular
procedure in filling up the application form is prescribed, the
application form should be filled up following that procedure alone.
This was enunciated by Privy Council in the Nazir Ahmad v. KingEmperor
9
, wherein it was held that “that where a power is given to
do a certain thing in a certain way the thing must be done in that
way or not at all. Other methods of performance are necessarily
forbidden.”
15. A three Judge Bench of this Court in a judgment reported as
Chandra Kishore Jha v. Mahavir Prasad & Ors.
10
, held as under:
“17....................It is a well-settled salutary principle that if a
statute provides for a thing to be done in a particular manner,
then it has to be done in that manner and in no other manner.
(See with advantage: Nazir Ahmad v. King Emperor [(1935-
36) 63 IA 372 : AIR 1936 PC 253 (II)] , Rao Shiv Bahadur
Singh v. State of V.P. [AIR 1954 SC 322 : 1954 SCR
1098] , State of U.P. v. Singhara Singh [AIR 1964 SC 358 :
(1964) 1 SCWR 57] .) An election petition under the rules
could only have been presented in the open court up to 16-5-
1995 till 4.15 p.m. (working hours 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 the period of limitation. That,
however, was not done................”
16. The said principle has been followed by this Court in Cherukuri
Mani v. Chief Secretary, Government of Andhra Pradesh &
Ors.
11
 wherein this Court held as under:
“14. Where the law prescribes a thing to be done in a
particular manner following a particular procedure, it shall be
done in the same manner following the provisions of law,
without deviating from the prescribed procedure.............”
9 1936 SCC OnLine PC 41
10 (1999) 8 SCC 266
11 (2015) 13 SCC 722
9
17. Similarly, this Court in Municipal Corporation of Greater
Mumbai (MCGM) v. Abhilash Lal & Ors.
12
 and OPTO Circuit
India Limited v. Axis Bank & Ors.
13
 has followed the said
principle. Since the advertisement contemplated the manner of
filling up of the application form and also the attempting of the
answer sheets, it has to be done in the manner so prescribed.
Therefore, the reasoning given by the Division Bench of the High
Court that on account of lapse of time, the writ petitioner might
have attempted the answer sheet in a different language is not
justified as the use of different language itself disentitles the writ
petitioner from any indulgence in exercise of the power of judicial
review.
18. Since the writ petitioner has used different language for filling up of
the application form and the OMR answer book, therefore, his
candidature was rightly rejected by the appellants.
19. Therefore, the order passed by the High Court cannot be sustained
in law, the same is set aside. The writ petition is dismissed.
Consequently, the appeal is allowed.
.............................................J.
(HEMANT GUPTA)
.............................................J.
(VIKRAM NATH)
NEW DELHI;
JULY 25, 2022.
12 (2020) 13 SCC 234
13 (2021) 6 SCC 707
10

Comments

Popular posts from this blog

100 Questions on Indian Constitution for UPSC 2020 Pre Exam

संविधान की प्रमुख विशेषताओं का उल्लेख | Characteristics of the Constitution of India

भारतीय संविधान से संबंधित 100 महत्वपूर्ण प्रश्न उतर