Court No. - 58
Case :- WRIT - A No. - 17398 of 2018 Petitioner :- Km. Rajnish Yadav Respondent :- State Of U.P. And 2 Others Counsel for Petitioner :- Yogesh Kumar Singh,Shri. Ashok Khare, Sr. Advocate Counsel for Respondent :- C.S.C.,Kailash Singh Kushwaha
Hon'ble Ashwani Kumar Mishra,J.
Petitioner is a female candidate from OBC category and had applied for selection to the post of Village Development Officer, pursuant to Advertisement No.3(Examination)/2016, published by U.P. Subordinate Services Selection Commission, Lucknow. Petitioner claims that she had applied for appointment to the post in question, but while filling the online application form, she mentioned her gender as 'Male' instead of 'Female'. According to petitioner, it was due to inadvertent error that gender 'Male' was mentioned instead of 'Female'. Immediately thereafter petitioner represented for permitting her to correct the gender, but the same has not been permitted.
Learned counsel for the petitioner submits that vacancies are still available, which fact has not been disputed.
The record reveals that petitioner has scored marks above the cut-off in the respective category, but only because of inadvertent error in describing her gender in her online form, her 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, the Commission has rightly rejected application of the petitioner for permitting them to change description of post code.
Having examined the respective contentions advanced, this Court finds that in the facts and circumstances of the present case, petitioner's request for being allowed amendment in filling up of gender in the application form ought to have been allowed and that no prejudice would have been caused to anyone in the process. Admittedly, posts are still lying vacant and the petitioner has competed in open competition and has scored marks above the cut-off in the respective category for selection to the post in question. It is further not in issue that mistake on part of the petitioner was wholly unintentionally. Petitioner has otherwise made an application well in time and has been pressing it continuously.
In view of the facts and circumstances, noticed above, this Court finds that petitioner is entitled to the relief prayed for in exercise of equity jurisdiction of this Court.
Consequently, this writ petition stands disposed of. The authorities of the Commission are directed to consider petitioner's claim for appointment to the post in question by treating her gender as 'Female', instead of 'Male', pursuant to the Advertisement No.3(Examination)/2016, provided she has scored marks above the cut-off in the respective category and vacancies are still available.
Order Date :- 23.8.2018 Ashok Kr.