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2022 DIGILAW 606 (ALL)

Ashutosh Kumar Srivastava v. State of U. P.

2022-04-22

PIYUSH AGRAWAL, RAJESH BINDAL

body2022
ORDER : 1. This order will dispose of a bunch of special appeals and writ petitions. The issue for consideration before this Court is regarding rejection of claim of the candidates, who had applied for the post of Assistant Teacher in Primary School. The advertisement for the same was issued on December 5, 2018 and the select list was notified on May 12, 2020. The candidates were directed to report at the respective districts for which their selection was made. During the course of counselling, their certificates were to be checked. In the said process, the candidature of number of candidates was rejected as it was found that there were discrepancies in the marks filled up by them in on-line applications as compared to the marks mentioned in the mark-sheets produced by them during counselling. 2. Some of the writ petitions were dismissed by the learned Single Judge against which the candidates are in appeals whereas in some cases, the writ petitions were allowed against which the Basic Education Board (hereinafter referred to as 'the Board') is in appeal. 3. In three special appeals bearing Special Appeal Nos. 98, 835 and 845 of 2022, interim orders passed by the learned Single Judge in favour of the candidates in the writ petition bearing Writ-A Nos. 15350, 8525 and 6839 of 2021, are under challenge. As delay in disposal of the writ petitions would further entail delay in conclusion of the process of selection and appointment, the aforesaid writ petitions were directed to be listed before this Court along with aforesaid appeals and the argument of the same have also been heard. Another writ petition bearing Writ-A No. 16905 of 2021 is already tagged with the bunch as identical questions are involved in the same. 4. The argument raised by learned counsel for the candidates is that, in terms of Government Order dated March 5, 2021, the candidature of a candidate is not required to be cancelled in case the marks filled up by him/her in an on-line application form is at a disadvantageous position, while preparing the merit list. In the case in hand, as per the marks filled by the candidates in their on-line applications, the percentage of marks was shown less as compared to the actual marks secured by them. 5. In the case in hand, as per the marks filled by the candidates in their on-line applications, the percentage of marks was shown less as compared to the actual marks secured by them. 5. This issue was considered by Hon'ble the Supreme Court in Writ Petition (Civil) No. 322 of 2021 titled as Jyoti Yadav and another vs. The State of Uttar Pradesh and others, decided on April 8, 2021 and in Writ Petition (Civil) No. 378 of 2021 titled as Rahul Kumar vs. State of Uttar Pradesh and others, decided on June 29, 2021 wherein the validity of the aforesaid Government Order dated 05.03.2021 was upheld and it was opined therein that in case the marks filled up by the candidates, cause disadvantage to them as compared to the actual marks obtained, the candidature of such candidates is not to be cancelled. Hence the cases of such candidates, who are before this Court, either in the writ petitions or in appeals, deserve to be reconsidered by the competent authority. 6. On the other hand, the argument raised by learned counsel for the Board is that if there is any error in filling up the form by a candidate, he cannot be allowed to make any correction. Clause 2 of the Government Order dated 05.03.2021, clearly provides that in such a situation, the candidature is required to be cancelled. The candidate could be given benefit only in case there was error committed by the Board or University. It is further submitted that selection process is already complete and appointments have been made. 7. Heard learned counsel for the parties. 8. In the bunch of appeals and writ petitions, we are not proposing to enter into the facts of each and every case as, after hearing learned counsel for the parties, we find that there has not been proper appreciation of facts by the competent authority while rejecting the candidature of the candidates on account of which they have approached this Court. The State itself found that there were some errors as a result whereof Government Order dated 3.5.2021 was issued. The validity thereof was challenged by some of the candidates before Hon'ble the Supreme Court in the case of Joyti Yadav and another (supra). The State itself found that there were some errors as a result whereof Government Order dated 3.5.2021 was issued. The validity thereof was challenged by some of the candidates before Hon'ble the Supreme Court in the case of Joyti Yadav and another (supra). The relevant clause thereof reads as under: “(1) In context of Recommendations of the Committee at Point-1 in reference to more marks mentioned:- The candidates, who had submitted the application form on the basis of the certificate/marks-sheet available with them and had mentioned more marks but the marks were subsequently changed after scrutiny/reevaluation/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/marks-sheet available with them at the relevant time of filling up of the application form. Such candidates, if they have obtained more quality points than the last candidate selected in the category in the district, then he/she 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 more maximum marks than what the actual was, his/her selection/candidature shall be cancelled.” 9. In the aforesaid case, while upholding the validity of the aforesaid Government Order, it was opined that wherever the mistakes committed by the candidates purportedly gave additional marks or weightage greater that what they actually deserve, according to the Communication dated 05.03.2021, their candidature should be rejected, however, wherever mistakes committed by the candidates actually put them at a disadvantageous position against their original entitlement or the variation could be one attributable to the University or issuing authority, an exception was made. Hon'ble the Supreme Court in respect of the aforesaid two categories in the Government Order dated 05.03.2021 did not find anything to be irrational. Hon'ble the Supreme Court in respect of the aforesaid two categories in the Government Order dated 05.03.2021 did not find anything to be irrational. Subsequently, the issue was examined in the case of Rahul Kumar (supra) with reference to the same selection process. While referring to the Government Orders dated 04.12.2020 and 05.03.2021, it was opined that wherever a candidate had put himself at a disadvantageous position, his candidature is not to be cancelled but if the candidate had been placed at an advantageous position which is beyond his right to claim, his candidature is to be cancelled. Relevant paragraph nos. 7, 8 and 9 of the aforesaid judgment read as under : “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. These petitions are, therefore, disposed of in the light of what is stated above. 8. It must however be stated here that the authorities are not strictly following the intent of the G.O. and the Circular. For example, the Office Order dated 28.03.2021 issued by the Basic Teacher Education Officer, District Hardoi, shows cancellation of the candidature of one Raghav Sharan Singh at Serial No.4, though the projection of marks by way of mistake by said candidate was to his disadvantage. Logically, said candidate would be entitled to have his candidature considered and reckoned at the disadvantaged level. The record shows that even with such disadvantage, the candidate was entitled to be selected. 9. Logically, said candidate would be entitled to have his candidature considered and reckoned at the disadvantaged level. The record shows that even with such disadvantage, the candidate was entitled to be selected. 9. We have given this illustration only by way of an example. The authorities shall do well to consider every such order issued by them and cause appropriate corrections or modifications in the light of conclusions stated above.” 10. From the facts of the bunch of cases listed before us and as has been pointed by some of the counsels, it is evident that the issue has not been examined by the competent authority in terms of the observations made by the Supreme Court in the aforesaid two judgments which relate to the selection process in question. In fact, in some of the cases, the rejection of the candidature, is prior to the aforesaid judgments. 11. As we find that the issues have not been examined by the competent authority in the light of the observations made by the Supreme Court in the aforesaid judgments interpreting the Government Orders dated 04.12.2020 and 05.03.2021, the matter needs to be re-examined. 12. While setting aside the impugned orders rejecting the candidature of the candidates on account of the error committed by them, we remit the matter to the authority of the district concerned for re-examination thereof in light of the aforesaid judgment of the Supreme Court and to take a final decision thereon. 13. It is made clear that candidates, whose names do not find place in the select list dated 12.5.2020, will not get any benefit with the change of marks as their merit position will not be changed for the reason that in case this is allowed to happen at this stage, it will open the entire selection process which is not the spirit of the order passed by this Court. 14. The entire process shall be completed by the competent authority within a period of one month from the date of receipt of a copy of this order. 15. It is further directed that in case any candidate is found entitled for appointment and is offered appointment on review of his/her case in terms of the aforesaid directions, he/she shall get all the benefits from the date, he/she joins the service 16. 15. It is further directed that in case any candidate is found entitled for appointment and is offered appointment on review of his/her case in terms of the aforesaid directions, he/she shall get all the benefits from the date, he/she joins the service 16. The order passed in this bunch of appeals/writ petitions may not be treated to be an order in rem rather it is an order in personam limited to the candidates before the Court who were vigilant enough to place their grievance before the Court.