Heard Sri Sharad Pathak, learned counsel for the petitioner, Sri Ran Vijay Singh, learned Additional Chief Standing Counsel for the State-respondents as well as learned counsel for the Secretary, Board of Basic Education, Prayagraj and Sri Shivam Sharma, learned counsel for the opposite party No.5.
By means of this writ petition, the petitioner has prayed for the following reliefs:-
"(i) to issue order or direction in the nature of certiorari quashing the impugned order dated 19.06.2021 passed by the opposite party No.5, as contained in Annexure No.1 to the writ petition.
(ii) to issue order or direction in the nature of mandamus directing the opposite parties to pay all the arrears of salary."
The contention of Sri Sharad Pathak, learned counsel for the petitioner is that the petitioner applied for the post of Assistant Teacher pursuant to the advertisement for recruitment of 69000 Assistant Teachers in the State of U.P.. While filling up the application form, the petitioner mentioned the marks obtained in the B.Ed. marksheet issued by the Chhatrapati Shahu Ji Maharaj University Kanpur for the batch 2015-17 in which it was not very clear about the marks obtained in the theory and practical. The said marksheet has been enclosed with Annexure No.4, precisely on running page 54 of the writ petition. While filling the form, the petitioner out of confusion mentioned his marks for B.Ed. as 585 out of 900 in written and 172 out of 200 in practical and the marksheet of B.Ed. also indicates that the petitioner obtained 757 out of 1100 marks. Therefore, learned counsel for the petitioner has submitted that his grand total is the same as has been indicated in his marksheet. Further, in the marksheet there is one item indicated after the grand total in the name of 'Final Practice of Teaching' in which the petitioner has obtained 85 marks out of 100. On account of confusion, the petitioner did not indicate the marks of 'Final Practice of Teaching' in his application form, even otherwise he has been selected for the post in question. Therefore, as per Sri Pathak, the petitioner could not indicate 85 marks for 'Final Practice of Teaching'.
Sri Pathak has drawn attention of this Court towards the judgment and order dated 08.04.2021 of the Hon'ble Apex Court rendered in re: Jyoti Yadav and another vs. State of U.P. & others Writ Petition (Civil) No.322 of 2021 referring para-14 of the aforesaid judgment, which reads as under:-
"14. Wherever the mistakes committed by the candidates purportedly gave additional marks or weightage greater than what they actually deserved, according to the communication dated 05.03.2021, their candidature would stand rejected. However, wherever mistakes committed by the candidates actually put them at a disadvantage as against their original entitlement or the variation could be one attributable to the University or issuing authority, an exception was made by said communication. The reason for treating these two categories of candidates differently cannot thus be called irrational.
In the first case, going by the marks or information given in the application for the candidate would secure undue advantage whereas in the latter category of cases the candidate would actually be at a disadvantage or where the variation could not be attributed them. The candidates in the latter category have been given a respite from the rigor of the declaration. The classification is clear and precise. Those who could possibly walk away with the undue advantage will continue to be governed by the terms of the declaration, while the other category would be given some relief."
Sri Pathak has further submitted that vide para-2 (1) of the Government Order dated 05.03.2021, which has been upheld by the Hon'ble Apex Court, clearly indicates that if any candidate has wrongly filled up his/ her application form in the absence of the documents and is in advantaged position of such incorrect information, the said application form shall be rejected. However, in the present case, the petitioner was having documents but due to inadvertence he has filled up the information regarding B.Ed marks instead of grand total and in the said information he is not in advantaged position, therefore, the aforesaid bonafide and inadvertent mistake may be condoned.
Sri Pathak has placed reliance on the subsequent judgment of Hon'ble Apex Court dated 26.06.2021 rendered in re: Rahul Kumar vs. State of Uttar Pradesh & others Writ Petition(s) (Civil) No(s).378 of 2021, referring para-7 thereof, wherein the Hon'ble Apex Court has clarified the position of those candidates whose inadvertent mistakes may be condoned. For convenience, para-7 of the aforesaid judgment is being reproduced here-in-below:-
"7. We need not consider individual fact situation as the reading of the G.O. and the Circular as stated above is quite clear that wherever a candidate had put himself in a disadvantaged position as stated above, his candidature shall not be cancelled but will be reckoned with such disadvantage as projected; but if the candidate had projected an advantaged position which was beyond his rightful due or entitled, his candidature will stand cancelled. The rigour of the G.O. and the Circular is clear that wherever undue advantage can enure to the candidate if the discrepancy were to go unnoticed, regardless whether the percentage of advantage was greater or lesser, the candidature of such candidate must stand cancelled. However, wherever the candidate was not claiming any advantage and as a matter of fact, had put himself in a disadvantaged position, his candidature will not stand cancelled but the candidate will have to remain satisfied with what was quoted or projected in the application form."
Therefore, it has been submitted by Sri Pathak that incorrect information, so given by the petitioner, did not provide him any advantage, rather, he is in disadvantage position but even then he has been finally selected. Therefore, his inadvertent and bonafide mistake may be condoned and he may be permitted to submit his joining pursuant to the appointment letter being issued ignoring the impugned order of cancellation of his appointment, which is contained as Annexure No.1 to the writ petition.
On the other hand, Sri Ran Vijay Singh, learned Additional Chief Standing Counsel as well as learned counsel for the Secretary, Board of Basic Education, Prayagraj has submitted that this eventuality may very well be looked into by the Secretary, Board of Basic Education, Prayagraj, therefore, the petitioner may prefer a representation to such authority taking all pleas and grounds and the directions may be issued, in the interest of justice, for disposal of such representation.
This is a fair proposition, therefore, I hereby dispose of this writ petition finally permitting the petitioner to prefer a fresh representation to the Secretary, Board of Basic Education, Prayagraj taking all pleas and grounds which are available with him enclosing therewith the copies of all the relevant documents which are necessary for disposal of the representation within a period of fifteen days and if such representation is preferred by the petitioner within the aforesaid stipulated time, the Secretary, Board of Basic Education, Prayagraj shall consider and decide the representation of the petitioner strictly in accordance with law by passing a speaking and reasoned order, with expedition, preferably within a period of three weeks from the date of presentation of a certified / computerized copy of this order along with representation and the decision thereof be intimated to the petitioner forthwith.
It is made clear that this is a case of appointment and the petitioner appears to be a meritorious candidate, therefore, the decision shall be taken by the Competent Authority in view of the directions being issued by the Hon'ble Apex Court in the aforesaid two judgments.
It has been informed by Sri Pathak, learned counsel for the petitioner that consequent to the impugned order dated 19.06.2021, the authority concerned has issued recovery order against the petitioner, which has been received by the petitioner Yesterday i.e. 26.07.2021, therefore, he could not bring that order before the Court. He has requested that the recovery order may be kept in abeyance till appropriate decision is taken by the Secretary, Board of Basic Education, Prayagraj.
Considering the aforesaid request of Sri Pathak, learned counsel for the petitioner and consenting with the learned counsel for the opposite parties on that point, I hereby direct that no coercive action shall be taken against the petitioner till the appropriate decision is taken by the Secretary, Board of Basic Education, Prayagraj in terms of direction being issued by this Court. While taking appropriate decision in terms of order of this Court, the impugned order dated 19.06.2021 shall be ignored.
In view of the above, the writ petition is disposed of finally.
Order Date :- 27.7.2021 Suresh/