1. Heard Sri Sharad Pathak, learned counsel for the petitioner, Sri Ran Vijay Singh, learned counsel for the opposite party nos.1, 2, 3 & 5 and Sri Shivam Sharma, learned counsel for the opposite party no.4.
2. By means of the writ petition, the petitioner has assailed the order dated 19.06.2021 passed by opposite party no.4 by means of which the petitioner's appointment on the post of Assistant Teacher in 69,000 Primary Teacher has been cancelled. The petitioner has also assailed the decision dated 19.06.2021 passed by opposite party no.5 by means of which the District Selection Committee has taken decision of cancelling the appointment of the petitioner.
3. The precise submission of learned counsel for the petitioner is that while filling up the application form, he indicated his marks for Intermediate education passed in the year 2009 as 352 out of 500 in place of 332 out of 500 marks. As soon as the petitioner came to know about such bonafide mistake, he has requested the authority concerned to permit the petitioner to make such correction saying that he may provide original certificate/marksheet of the interim examination.
4. Learned counsel for the petitioner has further submitted that had the petitioner been filled up the correct marks of Intermediate as 332 out of 500, he would have been selected for the post of Assistant Teacher. Further, filling up more marks than he has obtained in the Intermediate was not extended any undue advantage to the petitioner, therefore, his candidature should have not been rejected on the basis of Government Order dated 05.03.2021 (Annexure No.26).
5. Learned counsel for the petitioner has also submitted that the appointment of any Assistant Teacher can be cancelled on the basis of Government Order dated 05.03.2021, if any marks have been filled up by the candidate without having any documentary evidence to that effect and that information provides any undue advantage to such candidate but in the present case the petitioner is having his original mark sheet and certificate of the Intermediate Examination and the marks so filled up by the petitioner is not extending any undue advantage, in as much as he would have been selected if he had filled up the correct marks. Therefore, learned counsel for the petitioner submitted that in the interest of justice petitioner could have been permitted to correct the bonafide mistake, thereby permitting the petitioner to discharge the functions for which selection letter was issued to him.
6. Learned counsel for the petitioner lastly submitted that when the petitioner has been selected on the post of Assistant Teacher and has been permitted to submit his joining on such post then his appointment could not have been cancelled on the basis of principle of estopple and the bonafide mistake of the petitioner might be permitted to be condoned.
7. Per contra, Sri Ran Vijay Singh and Sri Shivam Sharma as learned counsel for the opposite parties have cited the judgment of Apex Court in the case of (Rahul Kumar Vs. State of U.P. & Ors.) referring para-4 thereof, whereby the Hon'ble Apex Court has considered the Government Order dated 05.03.2021 and vide para-7, the said Government Order has been upheld which reads as under:-
"4. Subsequently, the State issued Government Circular dated 05.03.2021 (''the Circular', for short) which further elaborated paragraph 1 of Point No.2 as stated above. The relevant portion of the Circular was to the following effect:
"2. In continuation of the recommendations dated 13-12-2020 of the Committee which were brought to your notice vide the letter dated 15-01-2021, the opinion of the legal and personnel department were sought. On the basis of the recommendations of the legal and personnel department, the following have been decided to be acted upon:-
(1) In context of Recommendations of the Committee at Point-1 in reference to more marks mentioned:-
The candidates who has submitted the application form on the basis of certificate/marksheet available with them and had mentioned more marks but the marks were subsequently changed after scrutiny/re-evaluation/back-paper by the university/issuing authority on its own, those candidates cannot be held to be responsible for changing or wrongfully mentioning marks in the application form as they did not have any option but to fill the marks mentioned in the certificate/marksheet available with them at the relevant time of filing-up of the application form. Such candidate, if they have obtained more quality points than the last candidate selected in the category in the district, then he/shall be given the appointment letter in that district. If any such candidate has lesser quality points than the last candidate selected in a particular district but more than the quality point than the last selected candidate in that category in the state list then the details of such candidate shall be provided to the administration by the Director, Basic Education. Further actions will be taken in that regard by the administration.
Where a candidate, without any documentary basis, has mentioned more marks than what he has obtained or has mentioned less maximum marks than what the actual was, his/her selection/candidature shall be cancelled."
a) According to the Circular, wherever more marks were claimed as a result of subsequent changes after scrutiny/ re-evaluation/back-paper by the university/issuing authority "on its own", the candidate could not be held responsible for discrepancy or wrongful mentioning of the marks and a benefit was therefore sought to be conferred upon the candidate which was not contemplated by the G.O.
b) The last part of the quoted portion of the Circular emphasized that where a candidate had mentioned "more marks" than what he had actually obtained or had mentioned "lesser maximum marks" than what the total marks for the examination in question were allocated, the selection/candidature of the candidate would stand cancelled.
c) The underlying principle, therefore, is quite evident that by quoting more marks than what the candidate had actually obtained or by specifying lesser total marks for the examination than those allocated for the examination, the candidate would essentially be claiming an advantage to which he was not entitled, in case the discrepancy were to go unnoticed.
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 entitlement, 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."
8. They referred another judgment of Hon'ble Apex Court in (Jyoti Yadav & Anr. Vs. State of U.P. & Ors.) referring para-13 to 15, whereby the Government Order dated 05.03.2021 have been clarified:-
"13. The stand of the State is that every candidate was obliged to fill up the relevant entries in the application form correctly and specially those pertaining to the marks obtained by the candidates in various examinations with due care and caution. The information given in the application form would reflect in quality points of the candidates and have a direct bearing on the merit list. That would in turn, not only determine the inter se merit but afford guidance to cater to the choices indicated by the candidates. The declaration which was spelt out in the Guidelines and repeated in the Advertisement, had clearly put every candidate to notice that if there be any mistake in the application form, the candidate could not claim any right to have those mistakes rectified.
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 form 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 be attributed to 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.
15. Having considered all the rival submissions, in our view, the Communication dated 05.03.2021 made a rational distinction and was designed to achieve a purpose of securing fairness while maintaining the integrity of the entire process. If, at every juncture, any mistakes by the candidates were to be addressed and considered at individual level, the entire process of selection may stand delayed and put to prejudice. In order to have definiteness in the matter, certain norms had to be prescribed and presciption of such stipulations cannot be termed to be arbitrary or irrational. Every candidate was put to notice twice over, by the Guidelines and the Advertisement."
9. Both the learned counsel for the opposite parties have submitted that vide Clause 17 of the notification pursuant to which the selection in question has been completed, it has been categorically indicated that if any candidate provides any wrong information, he/she may not be permitted to correct the same, so such candidate must verify the information carefully before finalizing the same. Therefore, the wrong information so given by the petitioner would definitely cause prejudice to him in view of Clause 17 of the notification in question.
10. So as to strengthen the aforesaid contention Sri Ran Vijay Singh, learned counsel for the opposite party has placed reliance on the judgment and order dated 08.04.2021 passed by the Division Bench in this Court in Special Appeal Defective No.226 of 2021 (Doli Vs. State of U.P. & Ors.) referring para-8 thereof, whereby the Division Bench has held that after submitting the form such correction may not be permitted in Clause-17 of the notification. For the convenience, Para-8 is being reproduced hereinunder:-
"8. Having noticed the two Division Bench decisions of this Court, the issue which arises for our consideration is whether a candidate who is put to notice that before uploading the data she must cross check the data with her testimonials and obtain a print-out thereof before uploading and, once it is uploaded, she would not be allowed to correct a mistake, could seek a writ of mandamus upon the authorities to allow her to correct the mistake. The answer to it would depend upon existence of enabling provisions found in a statute or rule or executive instructions. No statutory provision or rule or instruction has been shown to us which may allow such correction despite clear instructions to the contrary in the notification. It has also not been shown to us that the authorities have allowed such corrections to other candidates. It is well settled that a mandamus is ordinarily to be issued upon a public authority to perform its duty or obligation cast upon it by law. A person seeking a writ of mandamus must therefore demonstrate that a right inheres in him that casts a corresponding duty / obligation upon the public authority or State or its instrumentality to perform, or desist from performing, such act for which a writ of mandamus is sought. That right may be derived, inter alia, from the Constitution of India, a statute or a rule or an executive instruction. The petitioner has failed to demonstrate that any such right inheres in her under a Statute or rule or executive instructions. Whether such right inheres in her under the Constitution of India needs to be examined. Interestingly, the petitioner has not challenged the instructions contained in clause 17 of the notification as violative of Part III of the Constitution of India or any statutory provision or rule. Otherwise also, in matters relating to public examinations, such strict instructions as are found in clause 17 of the notification are desirable to prevent foul play and to ensure expeditious conclusion of the recruitment process, inasmuch as if candidates are allowed to correct/alter data their merit position would alter accordingly, resulting in utter confusion. Therefore, ex facie, such instructions do not appear arbitrary. In these circumstances, we are of the considered view, the appellant has failed to make out a case for issuance of a writ in the nature of mandamus commanding the respondents to rectify the mistake made by her in her online submission."
11. Lastly, both the learned counsels for the opposite parties have cited dictum in (Amarjeet Singh & Ors. Vs. Devi Ratan & Ors.) reported in (2010) 1 SCC 417 submitting that since the petitioner has not assailed the Government Order dated 05.03.2021 which is the foundation of cancellation of the appointment of the petitioner, therefore, the consequential order may not be quashed unless the main order is not assailed.
12. Learned counsel for the opposite parties drew attention towards the Annexure No.3 of the petition wherein undertaking of the petitioner has been enclosed showing that petitioner has given undertaking that in case if any wrong information is provided, his selection can be cancelled.
13. Shri Shivam Sharma, learned counsel for the opposite party has also drew attention towards Annexure No.35 of the writ petition which is an order dated 01.07.2021 passed by this Court submitting that learned counsel for the petitioner is taking contrary stand in the present case to the stand taken in the case of (Sri Chandra Shekar Vs. State of U.P. & Ors.) passed by this Court on 27.07.2021.
14. I have heard learned counsel for the parties, perused the material available on record and the decisions so cited.
15. Since the appointment of the petitioner has been cancelled on the basis of Government Order dated 5.3.2021 which has been confirmed by the Apex Court in re; Rahul Kumar (Supra) clarified in re; Jyoti Yadav (Supra), therefore, no interference may be required in the cancellation order. Besides, in view of Clause 17 of the notification of selection in question wherein it has been categorically indicated that if any wrong information has been provided by the candidate, the same may not be permitted to correct later on and such condition has not been assailed by the petitioner. Not only the above, the petitioner has himself given undertaking which is contained in Annexure No.3 with the writ petition, therefore, in view of the decision of Division Bench of this Court in re; Doli (Supra) the petitioner may not be permitted to correct the wrong information. To me, if the candidates are permitted to correct their mistake done while filling up the application form in question whether it is bonafide or not, the authority concerned would not be able to conclude the selection process to its logical end, therefore, the Clause-17 in the notification has been incorporated. So far as the argument of learned counsel for the petitioner regarding the principle of estoppel having been imposed against the cancellation of appointment of the petitioner vide order dated 19.06.2021 after permitting him to serve on the post in question is concerned, I am of the considered opinion that to meet out such eventuality the Government Order dated 5.3.2021 has been issued. Admittedly, neither the Government Order dated 5.3.2021 has been assailed nor Clause-17 of the notification has been assailed by the petitioner, therefore, the competent authority may not be restrained to issue order of cancellation of appointment of the petitioner on the basis of principle of estoppel.
16. Having heard learned counsel for the parties and having perused the material available on record and the case laws so cited by learned counsel for the parties, I do not find any infirmity or illegality in the orders impugned dated 19.06.2021 passed by the authorities, therefore, the writ petition is dismissed.
17. No order as to cost.
18. However, it is provided that since the petitioner has admittedly discharged his duties on the post of Assistant Teacher, therefore, no recovery shall be made from him for the period he has discharged his duties.
Order Date :- 27.8.2021 Gaurav/-