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2019 DIGILAW 2366 (RAJ)

Asif Ali Khan v. State of Rajasthan

2019-09-04

ARUN BHANSALI

body2019
ORDER : Arun Bhansali, J. 1. This writ petition has been filed by the petitioner seeking a direction to the respondents to change the category of the petitioner from General to OBC (Non-Creamy layer) for further recruitment process for the post of Clerk Gr. II/Junior Assistant. 2. It is inter alia indicated in the writ petition that the petitioner belongs to OBC (Non-Creamy layer) category. Pursuant to the advertisement dated 16.4.2018 (Annex. 2), the petitioner filled online application on 1.6.2018, wherein, on account of alleged mistake committed by the E-Mitra Franchisee instead of indicating his category as OBC (Non-Creamy layer), the same was indicated as General. The petitioner participated in the written examination and by the result dated 7.3.2019 (Annex. 5), the roll number of the petitioner has been indicated in the list of successful candidates, who would now participate in the type test. At this stage, the petitioner became aware of the fact that instead of OBC (Non-Creamy layer), his category has wrongly been indicated as General. Based on the said submissions, it is prayed in the writ petition that the petitioner may be permitted to change his category. 3. Learned counsel for the petitioner made submissions that the category indicated at the time of filling up the online application form by mistake, the petitioner has not taken any advantage of the said mistake and that once the mistake has come to light, the petitioner may be permitted to change the category as so far the type test is to be held and the final result has so far not been declared so as to harm any other candidate. 4. Reliance has been placed on Division Bench judgment in Kavita Choudhary v. The Registrar (Examination), RHC Jodhpur & Anr.: D.B. Civil Special Appeal (Writ) No. 1700/2017, decided on 1.11.2017. 5. Learned counsel for the respondent - Board made submissions that the stipulations made in the advertisement were specific indicating that the petitioner must ensure the category in which, he was filling up the form and after once choosing the category, the candidate would not be permitted to change the category. Further provision was made that any mistake committed could be rectified within a period of 7 days from the last date of application, however, the petitioner did not correct the alleged mistake. 6. Further provision was made that any mistake committed could be rectified within a period of 7 days from the last date of application, however, the petitioner did not correct the alleged mistake. 6. Submissions have been made that at the time of filling up the online application form, the petitioner was not in possession of a certificate of OBC (Non-Creamy layer) and, therefore, he has filled up the form as General candidate, which he now cannot be permitted to alter and, therefore, the writ petition deserves to be dismissed. 7. I have considered the submissions made by learned counsel for the parties and have perused the material available on record. 8. It is not in dispute that the petitioner filled up the application form as a General candidate and has succeeded in the preliminary written examination as a General candidate, however, now on realization that the category indicated in the application was incorrect, is seeking correction in the application form. 9. So far as the plea raised by counsel for the respondent regarding petitioner not being in possession of requisite certificate of OBC (Non-Creamy layer) is concerned, the stipulation made in the advertisement is clear, wherein, the candidate is required to produce the requisite certificate after passing the main examination at the time of document verification. 10. In view thereof, as to whether the petitioner was in possession of the requisite certificate at the time of filling up the online application form is apparently of no consequence. 11. The Division Bench in the case of Kavita Choudhary (supra) in an identical fact situation, wherein, the candidate instead of indicating her status as OBC (Non-Creamy layer) indicated her status as OBC (Creamy layer) inter alia observed and directed as under:- "7. To err is human. We do not note the second part: To forgive is divine. 8. Mistakes can be of two kinds. First kind would be where nobody is affected by a mistake. The second is where a third party is affected by a mistake. 9. The difference in the two mistakes would be that whereas rectification of the first would cause no prejudice, rectification of the second would cause a prejudice. 10. We find in the decisions dated 31.07.2013 in D.B.S.A.W No. 875/2012, State of Rajasthan Vs. Datar Singh, dated 11.10.2017 in S.B.C.W.P No. 7159/2017, Dinesh Kumar Mahawar Vs. 9. The difference in the two mistakes would be that whereas rectification of the first would cause no prejudice, rectification of the second would cause a prejudice. 10. We find in the decisions dated 31.07.2013 in D.B.S.A.W No. 875/2012, State of Rajasthan Vs. Datar Singh, dated 11.10.2017 in S.B.C.W.P No. 7159/2017, Dinesh Kumar Mahawar Vs. RPSC & Ors., dated 27.01.2017 in S.B.C.W.P No. 906/2017, Shimala Jat Vs. State of Rajasthan & Ors., dated 24.11.2016 in S.B.C.W.P No. 15654/2016, Sapana Kumari Vs. State of Rajasthan & Ors., dated 31.07.2017 in W.P. (Civil) No. 3721/2017, Arkshit Kapoor Vs. Union of India & Ors., dated 31.07.2017 in W.P. (Civil) No. 11642/2016, Ajay Kumar Mishra Vs. Union of India & Ors., passed by this Court and the Delhi High Court, the consistent view taken is that a bonafide mistake which does not affect a third party right should be allowed to be cured. 11. We dispose of the appeal directing that the appellant be treated as an OBC Non-Creamy Layer candidate and we permit her to participate in the further selection process. Needless to state the respondents would be entitled to verify the certificate submitted by the appellant." 12. In view of the above fact situation, wherein, in the present case also at this stage no prejudice on account of rectification being permitted to the petitioner is being caused to any other candidate, following the judgment in the case of Kavita Choudhary (supra), the writ petition filed by the petitioner deserves to be accepted. 13. Consequently, the writ petition filed by the petitioner is allowed, the respondent - Board is directed to change the category of the petitioner from General to OBC (Non-Creamy layer) and permit him to participate in the further recruitment process in the said category. However, further participation of the petitioner in recruitment would be in accordance with the advertisement, wherein, the petitioner would be required to produce the requisite certificate of OBC (Non-Creamy layer) at the time of document verification.