Court No. - 58
Case :- WRIT - A No. - 28178 of 2016 Petitioner :- Abhishek Prakash Sengar And Another Respondent :- State Of U.P. And Another Counsel for Petitioner :- Pradeep Kumar Counsel for Respondent :- C.S.C.,Kailash Singh Kushwaha
Hon'ble Ashwani Kumar Mishra,J.
While entertaining the writ petition on 9.6.2016, an interim protection was granted by this Court by observing that outcome of selection shall be subject to the further orders passed by this Court.
Petitioners are candidates from unreserved category and had applied for selection pursuant to Advertisement No.13(5)/2015, published by U.P. Subordinate Secondary Selection Commission, Lucknow. Various posts were advertised, including the post of Pharmacist and Pharmacist (Homoeopath). Petitioners claim that they had applied for appointment to the post of Pharmacist, but while making the online application form, they typed post code as '6' instead of '8'. Admittedly, only two posts of Pharmacist (Homoeopath) was advertised, both of which were reserved for OBC category. Petitioners admittedly could not have applied against such post, and according to petitioners, it was due to inadvertent error that post code '6' was typed instead of '8'. Immediately thereafter petitioners represented for permitting them to correct the post code in the for filled online, but the same has been rejected vide order impugned dated 11.5.2016. The order impugned has been passed pursuant to direction issued by this Court in Writ Petition No.11622 of 2016, on 28.3.2016. Order dated 28.3.2016 reads as under:-
"Supplementary affidavit filed today is taken on record.
The respondent no.2 has issued an advertisement dated 11.09.2015 inviting applications for appointment on posts of Lab Technician, X-Ray Technician, Pharmacist (Allopath), Pharmacist (Homoeopath), Pharmacist (Ayurved) etc.
The petitioner has made an application in response to the said advertisement. According to him, he was eligible for the post of Pharmacist (Homoeopath) and has submitted his application on 23.009.2015. The applications were invited online.
The grievance of the petitioner is that by a sheer human error, he had applied under the category of OBC although he is under the unreserved category. After noticing the said mistake, the petitioner has moved an application before the respondent no.2 to rectify the said mistake. However, no decision has been taken.
Learned counsel for respondent no.2 has invited the attention of the Court to the advertisement itself wherein it was provided that in case any mistake is occurred, the candidate had an option to fill a fresh application before the last date of submission of the form. The last application submitted by the candidate shall be treated as a final application. He submits that in spite of the said provision in the advertisement, the petitioner has failed to submit a fresh application before the last date of submission of the application.
Without going into the merit of the case, the writ petition is disposed of by issuing a direction upon the respondent no. 2 to consider the cause of the petitioner and pass appropriate order in accordance with law expeditiously, preferably within a period of six weeks from the date of communication of this order.
No order as to costs."
Learned counsel for the petitioners submits that out of 634 vacancies only 300 and odd vacancies have been filled and rest vacancies are still available. This statement of fact made in the writ petition has been admitted in para 9 of the counter affidavit. It is, therefore, not in dispute that nearly 300 vacancies are still lying unfilled pursuant to the advertisement in question.
The record reveals that petitioners have scored marks much above the cut-off in the respective category of Pharmacist, but only because of inadvertent description of post code in his online form, their candidature has not been considered. Various judgements have been relied upon by counsel for the petitioners in order to contend that such inadvertent error ought to be allowed to be corrected and that action of respondents is wholly arbitrary.
A Division Bench judgment of this Court in Mahima Srivastava v. State of U.P. reported in 2014 (10) ADJ 512 has been relied upon in which following observations have been made in para 6:-
"No doubt the conditions as mentioned in the advertisement, condition no.11 clause 14 clearly provides that upon any discrepancy in the marks mentioned in the form and the marks mentioned in the mark sheet, the form would be rejected out rightly. But at the same time we cannot be oblivious to the factor of 'human error' which is a normal phenomena and happens with everyone. All that is to be seen the bonafide of the applicant. If from the perusal of the record it appears that such error would place the applicant at a better position, then doubts can be had and motives can also be attributed. But if the error is such which is to the disadvantage of the applicant then doubting her motive would be unjustified. As in the present case, the mark sheet of B.Ed. revealed 726 marks whereas the applicant committed a mistake while filling the form wherein she mentioned B.Ed. marks as 721. Such a mistake has to be taken to be a human error or a bonafide mistake as the applicant would not derive any benefit by disclosing lesser marks than she actually scored."
Similarly, another Division Bench judgment of this Court in Archana Rastogi v. State of U.P. and others reported in 2012 (3) ADJ 219 has been pleased to observe as under:-
"From perusal of the column 13 of the advertisement (Annexure-5 to the writ petition), it will be seen that along with the Application Form the candidates were also required to submit their High School and other certificates in support of the declaration of marks made by them in column 10 of the advertisement. Thus, the High School Examination Certificate having been appended to the Application Form it cannot be said that there was no material before the competent authority to verify the actual marks obtained by the appellant-petitioner. In fact, the testimonials in support of the education qualification are, as a matter of fact, required to be filed for purposes of verification of the statement and declaration made in column 10 of the advertisement and, in such circumstances, the High School Certificate of the appellant-petitioner being before the competent authority, even if the appellant had, through human error mentioned her marks obtained in her High School Certificate as 256, the competent authority ought to have verified the same from the High School marks shown in the High School Certificate appended to the appellant's Application Form. Apparently, this was not done and the candidature of the appellant was rejected in a most cursory and arbitrary fashion relying purely upon the declaration made in the Application Form. It may further be noticed that by mentioning her High School marks in the application form as 256 instead of 356 the appellant-petitioner did not stand to gain any ulterior benefits and it is not a case where the appellant-petitioner deliberately tried to mislead the respondents for any personal gain. These facts have not been considered at all by the competent authority while rejecting the representation of the appellant-petitioner. However, as we have already mentioned that since the original testimonials were appended to the application form, the competent authority ought to have given credence to the High School Examination Certificate appended to the Application Form of the appellant rather than ignoring the same and arbitrarily rejecting the candidature of the appellant-petitioner merely on the basis of lesser marks wrongly disclosed in the Application Form.
We, therefore, allow this appeal and set aside the order of the Hon'ble Single Judge dated 2.11.2011."
Reliance has also been placed upon a Division Bench judgment delivered in Special Appeal No.75 of 2013, decided on 18.1.2013 in which earlier judgment in Archana Rastogi (supra) has been followed.
Sri K. S. Kushwaha, learned counsel for the Commission submits that in view of the specific provision contained in the advertisement prohibiting change in the online form, the Commission has rightly rejected application of the petitioner for permitting them to change description of post code.
Having regard to the respective contentions advanced, this Court finds in the facts and circumstances of the present case that petitioners' request to correct the online application form by changing the post code ought to have been allowed, and that no prejudice would have been caused to anyone in the process. Admittedly, nearly 300 posts are still lying vacant and the petitioners have otherwise competed in open competition, and have scored marks much above the cut-off in the respective category for selection to the post in question. It is further not in issue that the post code '6' was not available for the petitioners, inasmuch as such post itself was reserved for OBC category candidates, while petitioners are from unreserved category, and therefore, it is not in issue that mistake on the part of the petitioners was wholly unintentional. Petitioners have otherwise made an application well in time and have been pressing it continuously.
In view of the facts and circumstances, noticed above, this Court finds that petitioners are entitled to the relief prayed for in exercise of equity jurisdiction of this Court.
Consequently, this writ petition succeeds and is allowed. The order date 11.5.2016 stands quashed. The respondent Commission is directed to consider petitioners' claim for appointment to the post code '8', under the Advertisement No.13(5)/2015, instead of post code '6', provided they have scored marks above the cut-off in the respective category and vacancies are still available.
Order Date :- 23.8.2018 Ashok Kr.