( 2025:HHC:16799 ) IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CWP Nos. 2370 & 5173/2025 Decided on: 30.05.2025 CWP No. 2370/2025 Anju Kumari & Ors. …Petitioners Versus State of H.P. & Anr. .…Respondents. CWP No. 5173/2025 Neelama Devi …Petitioner Versus State of H.P. & Anr. .…Respondents. ………………………………………………………………………………. Coram Ms. Justice Jyotsna Rewal Dua, Judge. Whether approved for reporting?1 For the petitioner(s): Mr. Hirdaya Ram, Mr Suresh Saini and Mr. Nand Lal Thakur, Advocates for the respective petitioners. For the respondent(s): Mr. Rajat Chaudhary, Assistant Advocate General, for respondents/State in both the petitions. 1 Whether reporters of the local papers may be allowed to see the judgment? yes 2 ( 2025:HHC:16799 ) Mr. Vikrant Thakur, Advocate, for respondents-HPPSC, in both the petitions. Jyotsna Rewal Dua , J Involving common questions of law & facts and also seeking similar reliefs, these writ petitions are taken up together for adjudication. i). Petitioners 7 in number have filed these writ petitions seeking writ of mandamus to respondent No.2-H.P. Public Service Commission to stop the recruitment process for the post of Ayurvedic Pharmacy Officer (Post Code 1025) (Class-III) on contract basis in AYUSH Vibhag, Himachal Pradesh and for retaking the examination because of serious lapse in conducting the examination. Notice of writ petition bearing CWP No. 2370/2025 was issued on 17.02.2025 and vide interim order passed on the date, respondent No.2-H.P. Public Service Commission though was permitted to undertake documents verification for the post of Ayurvedic Pharmacy Officer, but with rider that the official result will not be declared except with the leave of the Court. ii) The matters were finally heard on 26.05.2025 at length, when the petitioners’ contentions as well as stand of the respondents were considered and deliberated as under:- “Petitioners participated in the advertisement issued by respondent No.2 on 10.02.2024 for recruitment to the post of Ayurvedic Pharmacy Officer (Post 3 ( 2025:HHC:16799 ) Code: 1025). As per the scheme of examination mentioned in the advertisement, the candidates had to qualify Paper-I with minimum 35 marks, out of total 100 marks. This paper was to be of Objective Type Multiple Choice Questions with negative marking for incorrect answers. Those who qualify Paper-I, were to appear in Paper-II. The merit was to be drawn on the basis of marks obtained in Paper-II. Both Paper-I and Paper-II were to be convened the same day. Dispute in present petition concerns Paper-I. As per the advertisement:- Each question in Paper-I was to be followed by 04 options, i.e. A, B, C and D; There shall be negative marking for Paper-I; In case a candidate does not want to answer a question to avoid negative marking, he shall have the option to encircle/blacken the 5th option, i.e. ‘E’. If any answer is left blank and none of the options is encircled/clicked, then also it will result in negative marking. 2. All the petitioners participated in the selection process under the aforesaid advertisement. Examination centre allotted to petitioners No.4 to 6 was Government (Girls) Model Senior Secondary School Portmore, Shimla. As per the case pleaded by both the parties, in one room of the aforesaid centre, wherein, 51 candidates undertook the examination including petitioners No.4 to 6, the OMR sheets that were distributed to the candidates had four options, i.e. A, B, C and D in Paper-I. These 51 candidates including petitioners No.4 to 6 did not have option ‘E’ in the OMR sheets supplied to them. 3. For want of option ‘E’, the aforesaid 51 candidates including petitioners No.4 to 6 had to necessarily encircle/ mark one option out of the 4 ( 2025:HHC:16799 ) given four and consequently also faced the risk of negative marking. Whereas, the candidates, who undertook the same examination elsewhere, had the OMR sheets with all five options. These candidates could have escaped negative marking even if they did not know the answer of questions by encircling option ‘E’. 4. On becoming aware of the incorrect OMR sheets having been distributed in one room of the aforesaid examination centre, respondent No.2-Commission deliberated over the matter and approved as under:- “(i) In case where the candidates have used OMR answer sheets containing 05 (five) options i.e. A, B, C, D & E, the OMR answer sheets of all the appeared candidates shall be evaluated by ignoring the Option E and there shall be no penalty for not darkening the option E on the OMR answer sheets in Paper-I of the above mentioned examination held on 14-09-2024. (ii) In case where the candidates have used OMR answer sheets containing 04 (four) options i.e. A, B, C & D, there shall be no penalty for leaving the circles blank in the OMR answer sheets as option E was not available to them. (iii) In order to avoid re-occurrence of such incidents the Commission decided that different color scheme for OMR answer sheet be adopted in future”. (Annexure R-2/I).” The above solution resolved by respondent-Commission may not be sufficient to redress the grievance since in the aforesaid solution, as per the Commission, the candidates with defective OMR sheets will not be penalized for leaving the circles blank against options A, B, C and D, however, at the same time, the Commission has ignored the fact that these candidates were required to give one answer either A or B or C or D, thus, thereby encircling either of the option and in case of that 5 ( 2025:HHC:16799 ) option being wrong, then inviting penalty of negative marking. Respondent-Commission has not considered waiving the penalty of negative marking for the candidates, who were given defective OMR sheets in order to balance the scales vis-à-vis the candidates, who were given OMR sheets with 05 options including the option ‘E’ to evade negative marking. In view of above, learned counsel for the respondent- Commission seeks and is allowed three days’ time to examine the aforesaid. List on 30.05.2025.” 2. Pursuant to above directions, learned counsel for respondent No.2 has placed on record office instructions dated 28.05.2025. Relevant portion of the same reads as under:- “This is in reference to your office letter dated 26-05-2025 on the subject cited above and to inform you that after due deliberations with your goodself. observations made by the Hon'ble High Court in its order dated 26-05-2025 were placed before the Commission on dated 28-05-2025. The Commission after going through the observation of the Hon'ble High Court dated 26-05-2025 has agreed to waive the penalty of negative marking in paper-I in case of all 51 candidates who were inadvertently given defective OMR sheets in paper-I and to finalize the result for the post of Ayurvedic Pharmacy Officer, accordingly. Therefore, the Hon'ble court may kindly be apprised of accordingly.” 3. In the afore-extracted instructions, respondent- commission has agreed to waive the penalty of negative marking in 6 ( 2025:HHC:16799 ) Paper-I for all 51 candidates, who were given defective OMR sheets in Paper-I. In my considered view, this is a fair stand on part of respondent No.2. Waiving penalty of negative marking in Paper-I for all 51 candidates, who were given defective OMR sheets in Paper-I at one examination center i.e. at Government (Girls) Model Senior Secondary School Portmore, Shimla (only in one room of the aforesaid centre) redresses the grievance of the candidates. Waiving penalty of negative marking in Paper-I, in case of 51 candidates, who were given OMR sheets with four options vis-a-vis the candidates, who were given OMR Sheets with five options including the option ‘E’ to evade negative marking, effectively balances the scale. Though learned counsel for the petitioners in CWP No.2370/2025 has expressed some reservation. According to him, waiving penalty of negative marking in Paper-I for 51 candidates, who were given OMR sheets with four options would result in inequity to those, who were given five options. Learned counsel for the petitioner would contend that entire selection process is required to be conducted afresh, the exam needs to be held again. It may be noticed here that only petitioners No.4-6 of CWP No. 2370/2025 & sole petitioner in CWP No. 5173/2025 had appeared in the particular examination center. Instant is not a case of malpractice or large-scale illegalities/irregularities or use of unfair/fraudulent/manipulative means in conduct of examination or a case, where selection process 7 ( 2025:HHC:16799 ) is vitiated. Its a case, where 1817 candidates appeared in Paper-I, which was of qualifying in nature. Merit is to be drawn on the basis marks obtained in Paper-II. Both the papers were held the same day. Out of 1817 candidates, 51 had undertaken the exam in one room of a particular examination center. The OMR sheets given to 51 candidates (including petitioners No.4-6 in CWP No.2370/2025 & petitioner in CWP No.5173/2025) in Paper-I did not have 5th option i.e. “E-None of the above” which was available in OMR sheets of all other candidates. Exercise of option ‘E’ would have ensured no negative marking or else ticking of an incorrect option out of other four options (A,B,C,D) would have resulted in negative marking. In my considered view, waiving penalty of negative marking for 51 candidates, who had no choice but to choose any one out of provided four options, is the best solution in the circumstances for equibalancing the scales. Waiving the penalty of negative marking in Paper-I for 51 candidates sufficiently takes care of interest of all the participating candidates. In such scenario, all candidates will be evenly placed. Admittedly Paper-I is of qualifying in nature. The merit of the exam is to be determined by Paper-II. 4. In view of the detailed order passed on 26.05.2025 (supra) and office instructions placed on record by respondent No.2- H.P. Public Service Commission, this writ petition is disposed of by 8 ( 2025:HHC:16799 ) permitting respondent No.2-H.P. Public Service Commission to declare the result of the examination for the post of Ayurvedic Pharmacy Officer (Post Code:1025) by following the decision as conveyed by them in their office instructions dated 28.05.2025. Pending miscellaneous application(s), if any, shall also stand disposed of. Jyotsna Rewal Dua Judge May 30, 2025(rohit)