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2008 DIGILAW 1890 (ALL)

SABA ALI v. STATE OF UTTAR PRADESH

2008-09-05

SUDHIR AGARWAL

body2008
JUDGMENT Hon’ble Sudhir Agarwal, J.—Heard Sri Ashok Khare, Senior Advocate, assisted by Sri M.A. Khan for the petitioner and learned Standing Counsel for the respondents. Since pleadings are complete, as requested by learned counsel for the parties, the writ petition has been heard finally under the Rules of the Court at this stage and is being decided. 2. The petitioner has sought a writ of mandamus commanding the respondents to permit her to appear in the examination of BTC Urdu Special Training for the session 2006-07 and 2007-08 (Ist Session). Brief facts giving rise to the present dispute are that applications were invited for admission in two years BTC Urdu Special Training Course pursuant to the Government Order dated 18.3.2006 issued by State Government. The petitioner submitted her application dated 20.4.2006 wherein she claimed to suffer physical handicappedness (disability with respect to vision). The respondent No. 3, i.e., Principal, District Institute of Education and Training, Saidpur, District Ghazipur (hereinafter referred to as ‘DIET’) issued letter inviting petitioner for counselling on 21.11.2006 but on the said date, counselling did not take place and, therefore, she was required to appear on 2.2.2007. In the meantime, since the petitioner’s disability certificate was lost, she applied for a fresh certificate, which was issued by the Chief Medical Officer on 16.11.2007. On 2.2.2007 the said date, the petitioner attended counselling and produced aforesaid certificate before the respondent No. 2 and also filed an affidavit to the effect that her earlier certificate has lost and, therefore, she has produced fresh certificate, which she has obtained on 16.11.2007. By letter dated 26.5.2007, the respondent No. 3 informed the petitioner that her name finds place in the merit list of handicapped candidates for admission to Urdu BTC Special Training, 2006 and, therefore, she should appear on 1.5.2007 alongwith original certificates. The petitioner said that she appeared on the said date, produced original certificates before respondent No. 3 and, thereafter, her name was recommended to the concerned institution for practical training, which was to be imparted between 23.8.2007 to 30.9.2007. The petitioner said that she completed her training at Kanya Purva Madhyamik Vidyalaya, Raiganj, Ghazipur. The petitioner said that she appeared on the said date, produced original certificates before respondent No. 3 and, thereafter, her name was recommended to the concerned institution for practical training, which was to be imparted between 23.8.2007 to 30.9.2007. The petitioner said that she completed her training at Kanya Purva Madhyamik Vidyalaya, Raiganj, Ghazipur. However, thereafter, on 11.1.2008, the respondent No. 3 sent a letter to Director, State Council of Education Research & Training, U.P., Lucknow (hereinafter referred to as ‘SCERT’) seeking guidance in the matter of permitting the petitioner to continue with the first session training stating that she has submitted certificate dated 16.11.2006 with respect to her physical disability which was much after the last date of submission of the application for, i.e., 27.4.2006. No decision was communicated by the Director, SCERT, hence, the petitioner made a representation dated 24.1.2008 and, thereafter, also sent a letter dated 20.2.2008 to the District Magistrate, Ghazipur, but having no response, has filed the present writ petition. 3. On behalf of respondent No. 3, a counter affidavit has been filed by learned Standing Counsel stating therein that in the tentative list of physical disabled candidates, the petitioner was at serial No. 4. First person, namely Sri Javed Khan did not appear in the selection, the next candidate Zaheda Khanam was not eligible being totally blind, the third candidate Sri Tabrej Ansari did not possess the requisition qualification and, therefore, the petitioner, who was at serial No. 4, was proceeded to be given selection, but since she could not produce her certificate of disability having been issued prior to last date of submission of form and, therefore, she cannot be said to be validly selected. It is said that the last date was 27.4.2006 and the certificate of disability produced by the petitioner is itself dated 16.11.2006, hence the said certificate could not have been taken into consideration for considering and selecting the petitioner in the category of physically handicapped candidates. It is thus argued that in this view of the matter, the petitioner was not given admission and the question of allowing her to undergo training would not arise. 4. It is thus argued that in this view of the matter, the petitioner was not given admission and the question of allowing her to undergo training would not arise. 4. Rejoinder affidavit, in reply to the aforesaid counter affidavit, has also been filed by the petitioner reiterating that her certificate having lost, she obtained a fresh certificate and produced before the respondents and the time for producing certificate was, in fact, extended by respondent No. 3. She has also placed on record the certificate issued by the Head Master, Purva Madhyamik Vidyalaya, Raiganj, District Ghazipur verifying that the petitioner was under training in the said institution from 23.8.2007 to 30.9.2007 and, therefore, the petitioner is entitled to complete her training and to be permitted to appear in the examination of Special Urdu BTC Training Course for the said session. 5. The only objection raised on behalf of the respondents regarding the validity of selection of the petitioner is that she did not produce disability certificate of a date prior to the last date of submission of application form and the certificate produced by her of a subsequent date could not have been considered at all and, therefore, the petitioner cannot be allowed to undergo the aforesaid training. The question as to whether the aforesaid action of the respondents is valid, just and legal or not. 6. It is true that in the application form, the petitioner declared herself to be physically handicapped on account of vision and also assigned a declaration that the requisite certificates/mark-sheets etc. with respect the information contained in item 1 to 12 of the application form are in her possession prior to the date of submission of the application form and if any document of subsequent date is produced the same may be rejected and the candidature of the petitioner shall be treated automatically rejected. However, the fact remains that by letter dated 27.1.2007, the Principal, DIET, i.e., respondent No. 3 directed the petitioner to produce the relevant document as also proof of loss of disability certificate. Meaning thereby the contention of the petitioner, which she asserted in her application dated 21.11.2006 when appeared for counselling before respondent No. 3 that her original certificate of earlier date has lost and she has obtained a subsequent certificate for the said purpose, which may be accepted, by itself was not rejected to be a pretext or false statement. Meaning thereby the contention of the petitioner, which she asserted in her application dated 21.11.2006 when appeared for counselling before respondent No. 3 that her original certificate of earlier date has lost and she has obtained a subsequent certificate for the said purpose, which may be accepted, by itself was not rejected to be a pretext or false statement. On the contrary, the respondent No. 3 required her to submit proof of loss of the said certificate and appear for counselling on 2.2.2007. The petitioner on 2.2.2007 not only submitted her disability certificate dated 16.11.2006 but also filed an affidavit stating that the earlier certificate had lost and, therefore, she had applied for fresh certificate which was issued on 16.11.2007. Accepting petitioner’s application, the respondent No. 3 placed the petitioner in the merit list as is evident from the stand taken by respondent No. 3 in the counter affidavit. In the peculiar circumstances of this case, therefore, in my view, it was not justified on the part of respondent No. 3 to declare petitioner ineligible for being selected in the quota of handicapped candidates merely on the ground that the disability certificate produced by the petitioner is of later date than last date of submission of application form and, therefore, she cannot be allowed to undergo the aforesaid training. It is not the case of the respondents that the petitioner did not possess any certificate of disability when she applied. They have not refused or disbelieved the stand taken by the petitioner that disability certificate which she possessed at the time of submission of the application form has lost somewhere and, thereafter, she applied and obtained a fresh disability certificate from the Chief Medical Officer. Having accepted the stand of the petitioner regarding loss of earlier disability certificate, it does not lie in the mouth of the respondents to turn around and reject her candidature now on the ground that she produced disability certificate of later date than the last date of submission of application form. Moreover, even the respondent No. 3 on his own did not found the stand of the petitioner incorrect or false and instead of taking any action on his part, he sought direction from Director, SCERT and kept the matter pending. Loss of a document is not an uncommon thing. Moreover, even the respondent No. 3 on his own did not found the stand of the petitioner incorrect or false and instead of taking any action on his part, he sought direction from Director, SCERT and kept the matter pending. Loss of a document is not an uncommon thing. This cannot be allowed to be used as a pretext for claiming right for consideration on the basis of the documents obtained subsequently after expiry of last date of submission of application form, but if in a genuine and bonafide case, the document which was already available, if had lost and candidate obtained a fresh document for the said purpose, it cannot be said that the same also stands on the same footing inasmuch here is a case where the document was available before the submission of the application form and, therefore, the declaration made in the application form as such cannot be said to be false or incorrect, but in view of the subsequent event that the document has lost, the candidate has no option but to obtain a fresh certificate and submit before the authorities. Such kind of incident is not uncommon. Unless the authorities found that the stand taken by the candidate concerned is palpably false, incorrect or unbelievable, in my view, such a candidate would not be denied the right of consideration only on the ground that after having lost earlier certificate, she/he has failed to submit the certificate of earlier date and, on the contrary, submitted a later date certificate. For an act over which sometimes the candidate may not have control of his/her own, he/she should not be made to suffer. No candidate can be benefited by deliberately not obtaining a certificate on the basis whereof some benefit would/had accrued to him/her. The stand taken by the petitioner was quite natural, genuine and in the absence of anything to show otherwise, the respondents also did not find any reason to disbelieve the same. In the entirety of the facts and circumstances of this particular case, in my view, the action of the respondents in not considering the petitioner for granting admission in BTC Urdu Course Special Training 2006 only on the ground that she has produced disability certificate of a date later than the last date of submission of application form is unjustified, arbitrary and illegal. Hence, the petition deserves to be allowed. 7. Hence, the petition deserves to be allowed. 7. In the result, the writ petition is allowed. The respondents are directed not to prevent the petitioner from undergoing and completing training for BTC Urdu Special Training for the session 2006-07 and 2007-08 (Ist Session) merely on the ground that she has produced disability certificate with respect to her vision, of a date which was subsequent to last date of submission of application form, and in case, she satisfies all other conditions for her selection and admission in the aforesaid course, be permitted to complete the said course accordingly. No costs. ————