Patna High Court: The Division Bench of Amreshwar Pratap Sahi, CJ and Anjana Mishra, J. rejected an appeal filed by a candidate who had appeared for the Bihar Public Service Commission (BPSC) examination in 2015, but failed to qualify the same; holding that the decision of Commission could not be faulted on legal or any other ground.

The dispute herein was centered around marking of OMR sheet and marks obtained by the petitioner in examinations for the post of Assistant held by BPSC. The appellant herein, had filed a writ petition before this Court contending that he had obtained 132 marks, and since cut-off for the category to which he belonged was 130 marks, he was entitled to be selected. The respondent Public Service Commission’s case was that the appellant had erased six questions in the OMR sheet due to which six marks were deducted and he was awarded 126 marks instead of 132. The learned Single Judge dismissed the writ petition; aggrieved whereby the instant petition was filed.

Mr P.N. Shahi, learned counsel for the respondent, drew the attention of Court towards condition nos. 10 and 12 of instructions contained in the leaflet of Commission which clearly mentioned that ‘any eraser or change is not allowed’ and that ‘failure to comply with any of its instructions would render the candidate liable to such action or penalty as the Commission may decide at their discretion’. He placed reliance on the Division Bench’s judgment in Pushpa Kumari v. State of Bihar, 2016 SCC OnLine Pat 2668 where such a condition imposed by the Commission in another examination was held to be mandatory. Further, appellant’s OMR sheet was produced before the Court and it was pointed out that whitener had been used for erasing the answers already attempted by him for six questions.

The Court opined that Clause 10 of the respondent Commissions instructions clearly provided that any eraser or change is not allowed. The said condition was mandatory in view of the reasoning in Pushpa Kumari case. It was held that any attempt to answer a question a second time after erasing the first answer, results in disallowing the said answer, necessary consequence whereof is a deduction of marks for the said answer.

In view of the above, the appeal was rejected.[Abhishek Kumar v. State of Bihar, 2019 SCC OnLine Pat 479, Order dated 10-04-2019]

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