ORDER : Heard. 1. The present petition has been filed to cancel the examination of Pharmacist-II held for Jashpur district and to consider the candidature of the petitioner after verification of the document. 2. The case of the petitioner is that pursuant to an advertisement dated 18/07/2016 (Annexure P/1) he applied for the post of Pharmacist and appeared in written examination and qualified the said examination by securing district rank 5 in the order of merit as per Annexure P/3. According to the petitioner, the publication so made by the Chhattisgarh Professional Examination Board (VYAPAM), the entire process of examination and the subsequent examination was to be published in the official website of the VYAPAM. It is submitted by the petitioner that after selection of the petitioner, the documents were required to be verified and as per Annexure P/4 a press note was issued by the Chief Medical Officer, Jashpur on 14/12/2016 which were not made known on time and the petitioner could not file document for verification, therefore, there is a clear deviation from the rules and procedure adopted by the respondent/VYAPAM and the State, as the entirety of the examination should have covered the intimation for the date of counseling and the documents to be verified. 3. Learned counsel for the petitioner would submit that thereafter the date of filing of the documents for verification was fixed from 15/11/2016 to 17/11/2016. Having came to know of the fact, the petitioner filed an objection/representation dated 23/11/2016 to highlight that he has secured 5th rank in the order of merit and since the application so invited in the website of Jashpur district his name was not included, he could not file the documents, therefore, he may be allowed to place the documents for verification but the same was dismissed by the order dated 07/12/2016 (Annexure R/3) by the Chief Medical Officer, Jashpur on the ground that no provision exist to file the documents after the last date of filing documents from 15/11/2016 to 17/11/2016. Therefore, the petitioner was wrongly deprived of his right to be considered for appointment on the wrong facts and on hyper-technicalities. 4. Therefore, the petitioner was wrongly deprived of his right to be considered for appointment on the wrong facts and on hyper-technicalities. 4. Per contra, learned Additional Advocate General appearing for the State would submit that after the examination was conducted by the VYAPAM, they were not in hold of the things and since it was for the district of Jashpur and Bastar the rest of formalities were to be done by them. In case of the petitioner, for which he applied, the intimation was sent to CMO, Jashpur to publish the intimation for verification of documents and it was also published in the website of Jashpur District. It is further submitted that the petitioner though came to know about the intimation of verification in the website of Jashpur but he deliberately did not respond, therefore, no further course was left out and the petitioner could not have been considered. 5. No representation is made on behalf of Respondent No.2/VYAPAM, despite service of notice. 6. I have heard learned counsel for the parties and perused the documents. 7. The petitioner, applied for his candidature as per the advertisement, he belonged to general category and the advertisement contains the following instructions. The relevant instructions are reproduced hereinunder:- 8. Reading of the same would show that examination pattern, rules, syllabus, the method of application for exam, examination fees and conduct of the examination would be published in the VYAPAM website, which can be seen in website. The petitioner thereafter appeared in the examination and secured 5th rank in the Jashpur District. According to the respondent, after the written examination was over, the VYAPAM was not in hold to conduct the further verification, therefore, the intimation was sent to the concerned district CMO, who, in turn, published the intimation about verification of documents to be made in three local news-papers and it was also published in the website of Jashpur District. 9. According to the petitioner, the said press note and publication did not come to his knowledge instead pursuant to the objection invited subsequently on 16/11/2016, he filed an application/objection dated 23/11/2016 which purports that since the publication was made in the website of Jashpur, which was incomplete as it did not include his name and names of the other selected candidates too were not shown. Consequently, he could not appear for such verification of documents. 10. Consequently, he could not appear for such verification of documents. 10. The objection made by the petitioner dated 23/11/2016 and the apprehension appears to be quite reasonable. If the names of the selected candidates were not shown in the website how a candidate would have connected himself with the issue of requirement. The press note was made and according to Respondent No.3 in three news-papers the intimation was published but under what rules and authority the publication as news was made it is not clear before the Court. The contents of such web-site information made by Jashpur is not produced before the Court too. The initial advertisement issued would show that the entire proceeding of the examination and further conduct would be published in the website of VYAPAM. Though the written submission has been made by the VYAPAM, which is also supported by the State that after the written examination is conducted, the VYAPAM handed over the merit list and it is for the State authorities to further carry forward the process prima facie appear to run parallel. 11. The petitioner thereafter made a representation vide dated 23/11/2016 stating the reasons as to how he could not be considered, but the same objection was overruled by the letter dated 07/12/2016 Annexure R/3 by the Chief Medical Officer, which purports that after passing of the date of 15/11/2016 & 17/11/2016, no provision exist to consider the objection. One document is on record to show that subsequently on 16/12/2016 a notification was further made by the Chief Medical Officer inviting objection in respect of the documents which were furnished during the counseling. The said act completely resulted into denial of the right of the petitioner, who secured higher marks in the merit only on hyper-technical grounds. 12. The Supreme Court in the matter of Asha Versus Pt. B.D. Sharma University of Head Sciences { (2012) 7 SCC 389 } has laid down that if the Rule of merit is defeated by inefficiency, inaccuracy by improper methods of admission and there cannot be any circumstances where the rule of merit can be compromised. For the sake of brevity the relevant paras are reproduced hereinbelow:- “21. At this stage, we may refer to certain judgments of the Court where it has clearly spelt out that the criteria for selection has to be merit alone. For the sake of brevity the relevant paras are reproduced hereinbelow:- “21. At this stage, we may refer to certain judgments of the Court where it has clearly spelt out that the criteria for selection has to be merit alone. In fact, merit, fairness and transparency are the ethos of the process for admission to such courses. It will be a travesty of the Scheme formulated by this court and duly notified by the States, if the Rule of Merit is defeated by inefficiency, inaccuracy or improper methods of admission. There cannot be any circumstances where the rule of merit can be compromised. From the facts of the present case, it is evident that merit has been a causality. It will be useful to refer to the view consistently taken by this court that merit alone the criteria for such admissions and circumvention of merit is not only impermissible but is also abuse of law. (Ref.: Priya Gupta v. State of Chhattisgarh (2012) 7 SCC 433 ; Harshali v. State of Maharashtra (2005) 13 SCC 464 ; Pradeep Jain v. Union of India (1984) 3 SCC 654 and Sharwan Kumar v. DG of Health Services 1993 Supp (1) SCC 632. 24 . …...... Higher the competition, greater is the duty on the part of the authorities concerned to act with utmost caution to ensure transparency and fairness. It is one of their primary obligations to see that a candidate of higher merit is not denied seat to the appropriate course and college, as per his preference. We are not oblivious of the fact that the process of admissions is a cumbersome task for the authorities but that per se cannot be a ground for compromising merit. The authorities concerned are expected to perform certain functions, which must be performed in a fair and proper manner i.e., strictly in consonance with the relevant rules and regulations.” 13. Further, the Supreme Court in the matter of Saurabh Chaudri Vs. Union of India { (2003) 11 SCC 146 } while deciding the admission issue also emphasized that the merit should have the primacy subject as institutional preference. Therefore, the documents which are placed on record would show that even the petitioner filed the objection, the same was sidelined on the ground that the documents were not furnished during the window of filing of document between 15/11/2016 & 17/11/2016. Therefore, the documents which are placed on record would show that even the petitioner filed the objection, the same was sidelined on the ground that the documents were not furnished during the window of filing of document between 15/11/2016 & 17/11/2016. In view of this, it is quite vivid that initially there was a clear violation in respect of the publication of notification and even otherwise if the contention of the State is accepted that the publication was made in the website of Jashpur which was in know of the petitioner, the contention of the petitioner that such notification was incomplete has not been negated by production of such contents of notification. As per the petitioner, after he came to know about inviting objection, immediately he made the objection. The CMO instead of considering the seriousness of issue in a proper perspective started with headwind to dismiss the same and refused to accept the document on hyper-technical ground shelving the merit of the petitioner. When the objection to the documents were invited, it is obvious that selection process was not complete. So the tendering of documents could have easily accepted. Denial to do so resulting into deliberate ignorance of merit on technical grounds for reasons best known to the officers. 14. The law in this regard is very clear the Supreme Court in the matter of Vashist Narayan Kumar v. State of Bihar, 2024 SCC OnLine SC 2 has held that the candidature of candidate cannot be canceled on trivial ground till such trivial error is willful suppression or misrepresentation. The Supreme Court has held thus in para 20 & 21:- 20. In this case, the appellant has participated in the selection process and cleared all the stages successfully. The error in the application is trivial which did not play any part in the selection process. The State was not justified in making a mountain out of this molehill. Perhaps the rarefied atmosphere of the cybercafe, got the better of the appellant. He omitted to notice the error and even failed to avail the corrective mechanism offered. In the instant case, we cannot turn a Nelson's eye to the ground realities that existed. The State was not justified in making a mountain out of this molehill. Perhaps the rarefied atmosphere of the cybercafe, got the better of the appellant. He omitted to notice the error and even failed to avail the corrective mechanism offered. In the instant case, we cannot turn a Nelson's eye to the ground realities that existed. In the order dated 22.11.2021 in C.A. No. 6983 of 2021 [Prince Jaibir Singh v. Union of India], this Court rightly observed that though technology is a great enabler, there is at the same time, a digital divide. 21. In one of the cases cited as a precedent in the counter affidavit, before the High Court, Pankaj Paswan v. State of Bihar., 2015 SCC OnLine Pat 8739, the State had taken a defence that many candidates applied in more than one place and hence there could be deliberate tweaking in the date of birth to take advantage of the selection process in more than one district or region. It is very important to notice that there is no such plea taken in the present case. If any such device or trick had been adopted, the State would have easily detected the same and placed the same before the Court. The fact that the same has not been done shows that there was no trick or device resorted to by the appellant. It is a trivial error which appears to be a genuine and bona fide mistake. It will be unjust to penalise the appellant for the same. 15. The present matter involves another important question i.e. how the State functionaries discharging public duty must exercise their descretion. Douglas J. in United States Vs. Wanderisch (1951) SCC Online US SC 93 observed as under- ……..When it has freed man from the unlimited discretion of some ruler------where discretion is absolute man has always suffered. 16. The Supreme Court in E.P. Royappa case 1974 (4) SCC 3 held that the State action cannot be guided by the extraneous or irrelevant consideration and same must be based upon valid relevant principles which must be uniformally applicable to all. 17. The true test according to this Court is that technicality must not defeat justice. The person exercising such discretion should always consider what his decision would be if his own son or relative was in place of such candidate. 17. The true test according to this Court is that technicality must not defeat justice. The person exercising such discretion should always consider what his decision would be if his own son or relative was in place of such candidate. By applying such test, the person can ascertain that discretion he is using is proportionally to uphold the public good and should not be a result of a hyper-technicalities or irrelevant consideration. 18. Now as the considerable time has passed and it appears that all the process of selection has already been completed and the petitioner as of now cannot be relegated back to the post of Pharmacist for which he stood 5th on his merit, therefore, following the law laid down by the Supreme Court in the matter of Manoj Kumar v. Union of India & Ors. {[2024] 2 S.C.R. 409: 2024 INSC 126 } wherein it has been held that when a citizen alleges arbitrariness in executive action, the High Court must examine the issue, of course, within the context of judicial restraint in academic matters. While respecting flexibility in executive functioning, courts must not let arbitrary action pass through. Now returning to the facts of this case since as on date the appointment cannot be restored in furtherance of the duty the Court provided reasonable measure for restitution. The petitioner in this case was denied his appointment by clear deviation on the merit by arbitrary executive action. 19. The Supreme Court in the matter of Manoj Kumar (supra) has clearly laid down that providing reasonable equivalent restitution of wrongful action is primary duty of Court. 20. In the result, the petition is allowed. The State must make endeavour to provide/accommodate the petitioner into the service in the available vacant post and if the respondent authorities fails to accommodate petitioner into the service, they must pay the petitioner compensation of Rs. 10 Lakhs. 21. The aforesaid exercise be carried out by the respondent authorities within outer limit of six months from the date of receipt of copy of this order.