Court No. - 33
Case :- WRIT - A No. - 1445 of 2021 Petitioner :- Vinti Pandey Respondent :- State Of U.P. And 3 Others Counsel for Petitioner :- Shikher Trivedi,Krishnam Pandey,Radha Kant Ojha (Senior Adv) Counsel for Respondent :- C.S.C.,Arun Kumar
Hon'ble Ashwani Kumar Mishra,J.
Petitioner has approached this Court for a direction upon the respondents to accord consideration to her claim for appointment to the post of Assistant Teacher and to allocate district.
It transpires that the respondents passed an order on 1.12.2018 inviting applications for appointment to the post of Assistant Teacher. Last date for submission of such application form was 22nd December, 2018. Eligibility for appointment to the post included possession of Two Years B.T.C. Certificate.
The petitioner filed application form on 21.12.2018, in which she disclosed that she possesses B.T.C. qualification. However, it transpires that on the date, the petitioner filled up the application form, she had not cleared B.T.C. Course, but was declared failed. The result of B.T.C. has already been declared on 11.12.2018. The petitioner applied for scrutiny of marks and its result was declared on 19.3.2019. In the scrutiny, the petitioner has been declared passed.
Now question that arises for consideration in the matter is, as to whether, petitioner would be treated eligible for the post on the last date specified for filling up of the application form i.e. 22nd December, 2018, or not?
According to respondents, the petitioner misrepresented facts and falsely alleged that she has passed B.T.C. Course, inasmuch as, she was declared failed in the result of B.T.C. on 11th December, 2018 and, therefore, could not assert that she had passed B.T.C. Course.
On behalf of petitioner, it is urged that there existed no column in the online application form permitting the candidate to inform the Board that the application is being made in anticipation of the petitioner's result being revised on scrutiny and, therefore, the petitioner had no option but to disclose her status as passed in the column requiring possessing of B.T.C. qualification.
I have heard Sri R.K. Ojha, learned Senior Counsel assisted by Sri Durgesh Kumar for the petitioner, Ms. Archana Singh for the respondents and learned Standing Counsel for the State authorities. As the parties do not dispute the facts, which seems admitted, no occasion arises to keep the matter pending, therefore, the writ petition is being disposed of at the admission stage itself with the consent of learned counsel for the parties.
Before proceeding further, it would be worth noticing that the petitioner pursuant to her application form has qualified the stages of recruitment and she has not only been selected but has also been allocated a district for appointment, but actually appointment letter has not been issued to her. As a matter of fact, a provisional appointment was issued to petitioner, but the same has been withheld after above facts were brought to the notice of the authorities.
Law is settled that eligibility of a candidate for appointment has to be examined on the last date fixed for making of application form where the rules do not specify any other course. No other course is provided for the recruitment rules in question i.e. the Uttar Pradesh Basic Education (Teachers) Service Rules, 1981. In such circumstances, petitioner's eligibility will have to be tested with reference to the last date fixed for filing of application form.
It is admitted that in the result declared for B.T.C. Examination, the petitioner had failed and, therefore, as a matter of fact on the last date fixed for filing the application form the petitioner did not possesses B.T.C. Certificate. The issue is as to whether petitioner's candidature is liable to be set aside on the ground of misrepresentation/false disclosure or the subsequent change of marks in scrutiny would relate back to the date of initial declaration of result so as to protect the appointment offered to the petitioner.
The issue as to what would be the consequence of the marks being revised in the scrutiny or reevaluation has been considered by this Court in Sudhir Kumar Vs. State of U.P. and others, 2010 (5) ADJ 7, wherein following observations are made in paragraphs 7 & 8:-
"7. There can be two circumstances in which the marks obtained by a candidate in his examination stands revised. Sometimes where provisions exist, the candidate apply for scrutiny or revaluation of his answer sheets if he suspects anything wrong in the marks disclosed in his result and if his complaint is found true and on revaluation or scrutiny the marks obtained by the candidate are declared increased to some extent, there would be no difficulty at all to relate back the effect of such scrutiny or revaluation, inasmuch as, here is a case of mistake of fact or declaration by the Examining Body itself and for fault of the Examining Body, the candidate cannot be made to suffer because this is admitted by the Examining Body that it has committed mistake in declaration of lower marks though the candidate was entitled of higher marks and they rectify the same.
8. In my view, in such a case the mark sheet issued to the candidate would stand corrected from the date it was originally issued and even if last date for submission of an application form or a document has expired and such an eventuality takes place on a later date, the candidate can be given the benefit of such increased marks and the authority would be entitled to consider the revised mark sheet. In fact it is a case of reappraisal of marks itself and the original mark sheet issued to the candidate becomes non est from its inception and stands substituted by the revised mark sheet. Whether the candidate apply for scrutiny or revaluation before the last date of submission of the application form or subsequent thereto would be wholly irrelevant so long as he had validly applied for the same and such request has been accepted by the Examining Body."
The view taken in the aforesaid judgment is founded on the premise that any change/revision in the marks is on account of an error attributed to the examining body and the candidate cannot be made to suffer for such mistake. In such circumstances, the subsequent change in marks consequent upon declaration of scrutiny result would relate back to the date of initial declaration of result in law. For all practical purposes, the petitioner, therefore, would be treated to have passed the B.T.C. Examination, although in fact she may not have cleared the examination on the last date of filling of the application form. Petitioner otherwise cannot be made to suffer for the error of the examining body.
So far as the allegation of misstatement or false declaration is concerned, it is settled that not every misstatement or false declaration results in cancellation of candidature for appointment itself. Supreme Court in the case of Avtar Singh Vs. Union of Indian and others, 2016 (8) SCC 471 has laid down principles for guidance of the appointing authority even in cases of misrepresentation or false disclosure. It has been observed that where the errors are trivial or allegations are not serious enough so as to adversely affect the candidature for appointment itself the acts of misrepresentation or even false declaration may have to be ignored.
In the facts of the case, factual incorrect statement made by the petitioner cannot adversely reflect on the candidature of petitioner, particularly in view of the fact that the online application form otherwise contained no clause in which the petitioner could explain the circumstances in which the application itself was being made. Respondents would be concerned with the merits of the recruitment process itself and it is not in dispute that petitioner has qualified on the strength of her merit and has been selected for appointment. No prejudice would be caused to the respondents in the event petitioner's candidature is accepted, as merit in no circumstances would be compromised. The wrong declaration in the application form would, therefore, not be a ground to deny consideration to petitioner's claim for appointment.
Once in law, she is to be treated as having passed B.T.C. Course on the last date fixed for filling of the application form, the denial of appointment to petitioner cannot be sustained. The order dated 6.5.2021, in so far as it relates to present petitioner, stands quashed. A writ of mandamus is issued to the respondents to process petitioner's claim and issue appointment order, accordingly.
The writ petition stands allowed, accordingly.
Order Date :- 29.10.2021 Ranjeet Sahu