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Judgment
Since common questions have been raised in both the writ
applications, they have been heard together with the consent of the
parties and are being disposed of by this present order.
I have heard parties and have perused the records of the
cases.
The Bihar Public Service Commission (hereinafter
referred to as ''the Commission'') published an Advertisement on
15.09.2016 inviting applications from the suitable candidates for 60th
to 62nd Common Combined (Preliminary) Competitive Examination.
It is the first time when, with respect to this particular examination,
online submission of the forms has been introduced by the
Commission. The date for filling up online application forms was
declared from 27.09.2016 to 3.11.2016. However, this is admitted fact
that the Commission had extended the aforesaid period thrice. First
from 3.11.2016 to 14.11.2016, thereafter, from 14.11.2016 to
24.11.2016 and finally from 24.11.2016 to 5.12.2016. Various
instructions were already notified in the advertisement. The same has
been detailed in paragraph 6 of the counter affidavit filed by the
Commission. From perusal of the aforesaid paragraph, it appears that
first stage was online registration and downloading of challan for
payment of examination fee. After filling up the application forms
successfully for registration, candidates were required to pay requisite
fee through challan or online payment as described in the instruction.
After registration is confirmed, user name and password etc. was to be
given for filling up the application forms which is stage III. Finally,
after submitting online application forms, a PDS/soft copy would be
generated and flashed on the dashboard. It is also stated that once
payment was confirmed, the candidate automatically would get the
link to application form. After successfully submitting the application
form, candidates were required to obtain a printout of that and the
hard copy was required to be safely kept for future reference which
would disclose registration number submitted application number and
bar code etc. Only after submission of final form successfully the
process of filling up the form would be completed.
The grievance of the petitioners is that though they
successfully filled up the registration forms and got the registration
number and link after filled up form but finally when they pressed the
tab for final submission, the curser only moved and moved. Some of
them thought that they have been successfully submitted form and
some of them reattempted. During the course of hearing, some papers
were produced for perusal showing that some of them had informed to
the Commission through E-mail, however, this is strongly denied by
the Commission by saying that no objection was ever received by it
by any of the petitioner. It is further submitted that even after several
attempts, the curser of their computer continued behave like that,
some of them were under impression that they have actually
submitted the forms and would get the admit cards.
In the I.A.No.794/2017, the intervenors have brought on
record a notice published by the Commission on 28.01.2017 directing
the candidates to download their E-Admit cards by 31.01.2017.
However, when they could not download it as nothing was flashed on
the dash board of their computer, a writ petition was filed after
serving a copy upon the learned counsel for the Commission on
31.01.2017 itself. However, finally writ petition could be filed on
3.02.2017 only.
It is contended on behalf of the petitioners that due to the
fault of server of the Commission, they were not able to successfully
fill up the application forms, i.e., the third stage. However, they were
under bonafide impression that they have done it though curser only
showed moving. When they could not download their E-Admit cards,
this writ petition was filed on 31.01.2017 but after removal of defects
it could finally be re-filed on 3.02.2017.
Learned counsel appearing for the petitioners drew
attention of this Court towards news published in various newspapers
appended as Annexure-3 series in the writ petition. One of the news
reports says that the candidates assembled at B.P.S.C. office with their
grievance that they could not download the E-Admit Cards. However,
according to the newspaper, the Secretary took stand that the
candidates actually could not fill up the application forms correctly.
Similarly, in the I.A. No.794/2017 also, a news item published in
Hindi newspaper, namely, ''Dainik Bhaskar'' has been brought on
record which indicates that in the opinion of the concerned,
Commission came up with online system without proper preparation
for doing that.
At the strength of the aforesaid, learned counsel submits
that the career of the petitioners stands jeopardized and whatever be
the fault either with the server or the slow internet system, the
petitioners cannot be held responsible for that as it is beyond
imagination that a candidate would fill up the registration forms,
deposit the requisite fee but would not submit his application form.
There can be one or two such negligent candidates but all the
petitioners claim that they have faced such situation. Learned counsel
for the petitioners has submitted that there are 14,000/- such
candidates but there is nothing on record to substantiate the aforesaid
claim as the Commission vehemently denies that.
Learned counsel for the petitioners has placed reliance
upon an unreported decision of Rajasthan High Court dated 11.9.2012
in S.B.Civil Writ Petition No. 9170/2012 ( Datar Singh v. State of
Rajasthan & Anr and other analogous cases) at the time of hearing
wherein it has been held that the respondents while making
recruitment may avail assistance of technology but at the same time a
human approach is also required to be kept in mind. The object of
holding competitive test is to have best available hand and in this
process merit should not be compromised just for the reason that the
mechanical procedure adopted do not support the manual exercise. In
the cases, if the human error is rectified with all diligence at earliest
possible, a condonation of error is desirable. The total ignorance of
such rectification results into hardship and arbitrariness only.
Per contra, Mr. Lalit Kishore, learned senior counsel
appearing on behalf of the Commission submits that this is not a case
in which no further chance was given to the candidates as admittedly
the Board has thrice extended the date of submission of application
forms, however, if the petitioners still could not submit their
respective application forms then they themselves are to be blamed.
Now, while considering the aforesaid, a question has
arisen as to why the Commission had to thrice extend the time for
submitting the Form? The reason assigned in the counter affidavit is
that it was only for the purpose that no suitable candidates should be
left out. Then another question would arise that why entertain only
three times why not four times, five times and why not time granted
to the candidates was found sufficient for that. Whether the
Commission was not sure that the system which it has introduced
was full proof and, therefore, it was going on extending the dates?
In my opinion, the newspaper reports cannot weigh for
deciding the case in favour of the parties but at the same time
publication of such news articles regularly in newspapers stating that
the students are facing difficulty had not been denied by the
Commission and their conduct that it itself thrice extended the dates
shows that it was not sure that their system is up to mark and all the
suitable candidates have submitted their forms.
Apart from the aforesaid decision of the Rajasthan High
Court, few other High Courts have also dealt with the issue though
not exactly identical one. One of such decisions is by Kerala High
Court at Ernakulam in WP(C). No. 4140 of 2013(R) (Prakash P
George Vs. High Court of Kerala & ors) in which the issue was
for direct recruitment as District and Sessions Judge in the Kerala
State Higher Judicial Service. In that case also, online applications
were invited and registration was to be completed by 4.30 PM on
31st January, 2013. The writ application was allowed and the
respondents were directed to register application of the petitioner
online by making arrangements in that regard within three days.
In yet another decision of the Delhi High Court in W.P.
(C) 8393/2014, C.M. No. 19433 - 19434/2014 (Amit Pal Vs. Union
Public Service Commission), the order passed by the Central
Administrative Tribunal was assailed before the Division Bench.
The Central Administrative Tribunal was approached by the petitioner
on the ground that the credit entry made for online fee submission
was reversed back and credited back into his account. It was claimed
that the petitioner was completely unaware of later development and
when he sought to proceed further for generation of admission ticket,
he was denied the same. He consequently represented to the UPSC on
25.7.2014, but he was not treated a candidate in the examination.
During the pendency of the proceeding before the CAT, the
petitioner was allowed to appear in the preliminary test but his result
was directed to be kept in a sealed cover and the CAT ultimately
rejected his application by passing impugned order. The Delhi High
Court has held finally that the UPSC neither intimated to the
petitioner that the application accepted from him during the trial run
process did not constitute a real time application and that he was not a
candidate, nor, during the period concerned, he was informed that his
application submitted online and the Registration ID issued to him,
were invalid. Accordingly, the impugned order of CAT was set aside
and petitioner was declared successful in preliminary examination.
In my considered view, since this was the first time in
this competitive examination that online system was introduced by
the Commission and there are not only one or two candidates but
several of them have approached this Court who have successfully
been registered and paid the examination fee but, despite several
attempts, they could not fill up the application forms and though the
news paper report cannot weigh as evidence or considered finally
for taking this stand but it indicates that something wrong was
going on and the Commission had thrice extended the dates for
filling up the forms. It gives impression that it was not a full proof
system and claim of the petitioners that, after heavy influx of
application forms, the servers of Commission became slow, cannot
be ruled out. That apart, it would be in the benefit of the State and
the Commission also that all the suitable candidates should get
chance so that best of them could be selected in the examination
concerned and this is also to be kept in mind that several students are
coming from rural background where speed of internet may be slow
or may be of course error with the server also and they might have
been deprived on that count.
Considering all the facts and circumstances of these
cases, this Court is of the opinion that a chance should be given to the
petitioners and intervenors to appear at the examination.
Mr. Lalit Kishore, Sr. learned counsel has categorically
stated at the time of hearing that preliminary examination is to be
held on 12th February, 2017 itself and it is almost impossible to allow
them now.
However, in my considered view, having such a long
and continuous experience in conducting examinations successfully,
the Commission, if it desires, can take some measure to allow them to
appear in the examination. But the question would be the petitioners
could not fill up the forms and the forms so submitted have to be
scrutinized by the Commission and only those who are found
qualified and eligible to appear at the examination can be allowed to
sit in the examination. However, in the extraordinary facts and
circumstances of this case, this Court ex debito justitiae directs the
Commission to allow the petitioners and intervenors to appear at the
examination. The Commission would further allow them to fill up
form after the preliminary examinations are over and their forms
would be scrutinized. Thereafter, the result of only such candidates
would be published who are found eligible for writing such
preliminary examination after scrutiny of their application forms.
Accordingly, both the writ petitions as well as I.A. No.
794/2017 stand disposed of.