JUDGMENT :

SANJAY KUMAR MEDHI, J.

1. Heard Shri F. Khan, learned counsel for the petitioner. Also heard Shri T.J. Mahanta, learned Senior Counsel assisted by Ms. P. Sarma, learned counsel appearing for the APSC who had also produced the instructions including the original OMR sheets of the petitioner. Shri S.R. Baruah, the learned State Counsel is also present.

2. Pursuant to the order dated 06.10.2023, Shri Mahanta, learned Senior Counsel has obtained the written instructions. Considering the facts and circumstances and the instructions received, the writ petition is taken up for disposal at the motion stage.

3. The petitioner was an aspirant for the post of Assistant Engineer (Civil) under the PWD which was notified vide an advertisement dated 15.03.2023 for filling up 244 nos. of posts. The examination had consisted of an OMR based Screening Test followed by a viva-voce. It is the case of the petitioner that in the written examination which was OMR based, as per his assessment, he should have scored 124 marks. However, one person securing marks of 116 has been selected for interview and therefore, the petitioner has not been dealt fairly and transparently.

4. On the other hand, Shri Mahanta, the learned Senior Counsel has placed before this Court the written instructions including the OMR sheet of the petitioner in a sealed cover. It is submitted that the exclusion of the petitioner from the shortlisted candidates is not because of the projection made by the petitioner but because of the fact that the petitioner did not follow the guidelines meant for the candidates while filling up the OMR sheet. It is the specific case of the Commission that there is a requirement to darken the Roll No....Test Booklet No. and Series No. and so far as the Series is concerned, such guidelines were not followed by the petitioner as there is no darkening of the Series. The aforesaid submission made on behalf of the Commission is also found substantiated by the original OMR sheet of the petitioner which has been placed on record.

5. Shri Mahanta, the learned Senior Counsel has also placed reliance upon the following case laws wherein it has been laid down that it is a mandatory requirement for following the guidelines by the candidates in an examination conducted on the basis of OMR sheet.

(i) State of Tamil Nadu vs. G. Hemalathaa and Another, (2020) 19 SCC 430

(ii) APSC and Another vs. Izaz Yusuf Ahmed and Another, 2019 (3) GLT 754

(iii) Aatreyee Sharma vs. State of Assam and Others in W.P. (C) No. 3801/2023, dated 27.06.2023

6. In the case of G. Hemalathaa (supra), the Hon’ble Supreme Court was considering a matter pertaining to instructions to be followed by a candidate appearing in a recruitment process. In the said case, though the High Court had come to a conclusion that there was infraction of the instructions, a sympathetic consideration was made on humanitarian grounds. However, the Hon’ble Supreme Court did not approve the said approach and has observed as follows:

“10. In spite of the finding that there was no adherence to the Instructions, the High Court granted the relief, ignoring the mandatory nature of the Instructions. It cannot be said that such exercise of discretion should be affirmed by us, especially when such direction is in the teeth of the Instructions which are binding on the candidates taking the examinations.

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13. After giving a thoughtful consideration, we are afraid that we cannot approve the judgment of the High Court as any order in favour of the candidate who has violated the mandatory Instructions would be laying down bad law. The other submission made by Ms Mohana that an order can be passed by us under Article 142 of the Constitution which shall not be treated as a precedent also does not appeal to us.”

7. In the case of Izaz Yusuf Ahmed (supra), a Division Bench of this Court was considering a matter of identical nature wherein the answer sheets were in the OMR format and the series was also required to