Case BriefsHigh Courts

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]

Case BriefsTribunals/Commissions/Regulatory Bodies

Telecom Disputes Settlement & Appellate Tribunal (TDSAT): A Division Member Bench of Shiva Kirti Singh (Chairperson), J., A.K. Bhargava, Member, partly allowed a telecom petition filed against the manner in which penalties are imposed by the respondent (Department of Telecom) in case of non-compliance of radiation norms on EMF exposure by Base Transceiver Stations (BTSs).

The main issue that arose before the Tribunal was whether the method of imposing penalties in case of non-compliance of radiation norms on EMF exposure by Base Transceiver Stations (BTSs), legally valid.

The Tribunal observed that the main point of dispute in the present matter were those sites where the telecom service providers (TSP) were operating jointly. In case of non-compliance of EMF norms at a shared site, DoT levies same penalty of Rs. 10 Lakh on each and every BTS even though individually they may be radiating within the prescribed norms. The Tribunal further observed that there can be options where penalty can be imposed solely upon the erring TSP or it can also be imposed incidence-wise instead of distributing the entire penalty between all the TSPs irrespective of their liabilities. Imposing penalty upon TSPs who are well compliant with the norms laid down by the DoT is unjust and unfair as puts the defaulters and the non-defaulter on the same footing. Not considering options or alternatives by which the defaulters can be effectively penalized, at the same time saving the innocent TSPs, is totally unjust and arbitrary on the part of respondent.

The Tribunal held that with testing and due diligence, it is possible to rationalize the manner in which penalty was levied and DoT should undertake such exercise in right spirit. There can be no excuse to penalize innocent (when proven) arbitrarily in the name of collective responsibility, there can also be no excuse for ignoring the principle of proportionality to the extent that the result appears to be unjust and arbitrary. Resultantly, the respondent was directed to revise and fix penalty as it deems fit, keeping in mind that in case of a shared site, penalty be imposed on a per ‘site’ and ‘per incidence’ basis for non-compliance of EMF radiation norms. The petition was partly allowed and the circulars issued by respondent were partly modified.[Cellular Operators Assn. of India v. Union of India,2018 SCC OnLine TDSAT 353, order dated 15-11-2018]