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2024 DIGILAW 986 (GUJ)

Programme Officer v. Sharmilaben Jitendrakumar Baria

2024-04-23

BIREN VAISHNAV, PRANAV TRIVEDI

body2024
ORDER : (Pranav Trivedi, J.) 1. Both these appeals under Clause 15 of the Letters Patent assails the correctness and validity of the common order dated 02.02.2024 passed by the learned Single Judge in Special Civil Application Nos. 515 of 2024 and 518 of 2024. Since in both the appeals a challenge is to a common order passed by the learned Single Judge, we are inclined to take both the appeals for adjudication. 2. In Letters Patent Appeal No. 188 of 2024 the respondent – original petitioner had applied for the post of Anganwadi worker at Jambusar Baria Faliya, Village Jambusar, Taluka : Devgadh Bariya. Pursuant to the application made by the petitioner, candidature of the petitioner was rejected on the ground that the petitioner had mentioned total marks scored in Semester-I examination of a degree course as 800 marks instead of 900 marks. On the basis of such mistake, the candidature of the petitioner was rejected. 3. In Letters Patent Appeal No. 189 of 2024, the respondent – original petitioner had applied for selection to the post of Anganwadi Worker at the Anganwadi Center at Jambusar Sarpanch Faliya, Village Jambusar, Taluka : Devgadh Baria, District Dahod. In this case, the candidature of the petitioner was rejected on the ground that the candidate had secured 547 marks out of 900 marks whereas, in online application form, it was reflecting as 647 marks out of 900 marks. Thus, on the basis of such observation. the candidature of the petitioner was rejected. 4. The rejection of candidature of both the petitioners was challenged before the learned Single Judge by preferring writ petitions. The writ petitions were preferred on the ground that mistakes were trivial and only a typographical error. Therefore, such bona fide mistake should not result into rejection of candidature. A further ground was also taken that despite the fact that they could have applied only on one center, the candidates have applied in various Anganwadi Centers. On the basis of such fact, the whole merit list was challenged in the petitions. However, the leaned Single Judge after going through the arguments and submissions canvassed by both the learned advocates, had gone only on the aspect of rejection of the candidature of the petitioner. On the basis of such fact, the whole merit list was challenged in the petitions. However, the leaned Single Judge after going through the arguments and submissions canvassed by both the learned advocates, had gone only on the aspect of rejection of the candidature of the petitioner. The learned Single Judge after hearing both the sides had concluded the fact that mark-sheets have been uploaded along with the documents in question, it would become apparent that error which was committed by the candidates was a mere bona fide typographical error. Thus, it was further observed that the mistake so made by the petitioner was a procedural irregularity and not an illegality and, therefore, when the copies of the certificates were also annexed with the application form, it could not have construe that the petitioners were attempting to have any disadvantage erroneously, stating wrong marks. On this count, the writ petitions were allowed and the appellants were directed to redo the whole selection process. It is this common order passed by the learned Single Judge which is assailed by the appellants in the present appeals. 5. We have heard Mr. Nisarg Jain, learned counsel appearing for the appellants and Mr. Meet Kakadia, learned advocate appearing for the respondent no. 1 and Ms Roshni Patel, learned Assistant Government Pleader for respondent – State. 6. Learned advocate Mr. Jani for the appellants has made an attempt that the marks shown by the respondent in the online application form was an deliberate attempt to get the benefit in the selection process. It was not a trivial error. Learned advocate Mr. Jani has taken us to the contents of the advertisement and contended that as per the advertisement, once information as given by the candidate is wrong, then automatically their candidature would stand rejected. Learned advocate Mr. Jani has also taken us to the conditions along with the application and in particular, conditions nos. 2, 3 and 11 and submitted that the candidate would not be in a position to correct the mistake which has been done by filling up online application form. According to learned advocate Mr. Jani, as per the conditions in the application form, once there is mistake in filling up of the form or there is any discrepancy, then no further representation by the candidate would be considered and the candidature would get automatically rejected. 6.1. Learned advocate Mr. According to learned advocate Mr. Jani, as per the conditions in the application form, once there is mistake in filling up of the form or there is any discrepancy, then no further representation by the candidate would be considered and the candidature would get automatically rejected. 6.1. Learned advocate Mr. Jani has also relied on Clauses of recruitment of Anganwadi Workers and Anganwadi Health Workers Rules, 2019 more particularly reliance is placed reliance on Rule 7.6 and has submitted that only on information which has been given by the candidates in online application form would be considered as final and if there is any discrepancy in the information in the certificate then there would be automatic cancellation of rejection of the candidature. Based on Rule 7.6. and the conditions of the advertisement, learned advocate Mr. Jani has submitted that there was a mistake in filling up the online application form which would have resulted into discrepancy in the merit list and, therefore, it was not a bona fide or trivial error and on the basis of such error, the learned Single Judge ought not to have considered the prayer as made by the respondents. 6.2. To support his submissions, learned advocate Mr. Jani has placed reliance on the decision of the Hon’ble Apex Court in the case of Bedanga Talukdar v. Saifudaullah Khan rendered in Civil Appeal No. 8343 of 2011 : [ 2011 (12) SCC 85 ] and in particular, page nos. 9 to 18 of the said decision wherein according to learned advocate Mr. Jani it has been observed that there can be no relaxations in terms and conditions contained in the advertisement, unless power of relaxation is duly reserved in Recruitment Rules. However, learned advocate Mr. Jani has placed reliance on the decision of the Hon’ble Apex Court in the case of A.P. Public Service Commission v. Koneti Venkateswarulu rendered in Civil Appeal No. 5335 of 2005, : [ 2005 (7) SCC 177 ] more particularly page nos. 19 to 22 of the said decision and has submitted that in the aforesaid decision, it has been categorically held that the person who indulges in such suppression does not deserve any public employment. According to learned advocate Mr. Jani in the instant case by changing the numerator to denominator in the marks, there was suppression by the respondent and therefore, they do not deserve to be employed. 6.3. According to learned advocate Mr. Jani in the instant case by changing the numerator to denominator in the marks, there was suppression by the respondent and therefore, they do not deserve to be employed. 6.3. Learned advocate Mr. Jani has placed reliance on the decision of the Apex Court in the case of State of Bihar v. Madhu Kant Ranjan rendered in Civil Appeal No. 7677 of 2021 : [ 2021 (15 Scale 470] and reliance is placed on page nos. 47 to 51 wherein it was observed that if any relaxation of any condition is granted, then that would amount to violation of Article 14 of the Constitution of India by a judicial order. It was contended that there is a specific clause in the advertisement that once an online application is filled up, there would not be any change in the online application. Therefore, the ratio of this decision would be squarely applicable to the facts of the present case. Further, learned advocate Mr. Jani has placed reliance on he decision of the Hon’ble Apex Court in the case of Union of India & Ors., v. Mahendra Singh rendered in Civil Appeal No. 4807 of 2022. Reliance was placed on page nos. 85 to 94 of the said decision. According to learned advocate Mr. Jani in paragraphs 3 to 18 it has been observed that writing in different language the violates instructions clearly mentioned in the advertisement. If a particular procedure in filling up the application form is prescribed the application form should be filled up following that procedure alone. In the instant case, according to learned advocate Mr. Jani there was categorical deviation in the marks that were independently obtained by the respondent and therefore, as per the ratio laid down by this Court, the learned Single Judge ought not to have allowed the petition. Learned advocate Mr. Jani has also placed reliance on the decision of the Division Bench of the Punjab & Haryana High Court in the case of Saket Sheoram v. Haryana Public Service Commission & Anr., rendered in Letters Patent Appeal No. 1516 of 2017 wherein it was observed that the recruitment has to be conducted by the stipulated selection process, conditions and schedule. Jani has also placed reliance on the decision of the Division Bench of the Punjab & Haryana High Court in the case of Saket Sheoram v. Haryana Public Service Commission & Anr., rendered in Letters Patent Appeal No. 1516 of 2017 wherein it was observed that the recruitment has to be conducted by the stipulated selection process, conditions and schedule. In the case of Saket Sheoram (supra) the candidate has not submitted physical copy before the cut-off date and therefore, no relaxation power as reflected in the recruitment conditions could be granted. According to learned advocate Mr. Jani, once a candidate has made a mistake in filling up the form, there cannot be relaxation in the advertisement form. 6.4. Placing reliance on the above mentioned decisions, learned advocate Mr. Jani has submitted that the order passed by the learned Single Judge is question would jeopardize the selection process. 7. Per contra, Mr. Meet Kakadia, learned advocate appearing for the respondent has submitted that the mistake in filling up online form made by the respondent was trivial in nature. In one of the case, there was a mistake in writing numerator and denominator. Such mistake should not take away the right of the candidate to be in merit list, more particularly, when the original mark-sheet wherein the marks so obtained was also along with an application form. Learned advocate Mr. Kakadia has submitted that by way of affidavit has placed the calculation made by showing the percentage with correct calculation in amount and on account of mistake being committed in filling up the online application form as to marks, which would be reflected on pro rata basis. It was contended by learned advocate Mr. Kakadia that the difference would only either by 0.2 to 0.6 per cent. Nonetheless, there being a mistake trivial in nature, and such bona fide mistake should not result into rejection of the candidature of the candidate. 8. After hearing the learned counsels appearing for the respective parties and having perused the record, the primary issue that is to be decided was whether the mistake in filling up the online application form was trivial in nature or such that it amount to misleading and jeopardizing the merit list. On perusal of the advertisement and in particular, the conditions nos. On perusal of the advertisement and in particular, the conditions nos. 2, 3 and 11, one of the condition is that when the candidate fills up the online application form, it has to be accompanied with all the original documents, meaning thereby, if there is a mistake in filling up the form that could be verified by the original documents while making selection process. If the contention of learned advocate Mr. Jani has to be accepted, then the error not only in numerator but even in denominator would lead to rejection of the candidature. Meaning thereby, even if trivial mistake is made bona fidely, would result into rejection of the candidature. In our opinion, such argument of learned advocate Mr. Jani cannot be accepted as candidate would loose his vested right only on bona fide mistake. Further, we observed that in the instant case, there was an error in showing marks which could lead to partial modification in the merit list due to change in the marks on pro rata basis. However, what needs to be seen is that whether such mistake was trivial mistake or intentional mistake as the supporting document as well as the original mark sheets were placed along with online application form. Hence, we see no reason why such mistake should be considered as mala fide and such mistake should not result into rejection of the candidature. Therefore, we are in total agreement with the observations made by the learned Single Judge in allowing writ petition and thereby, we hereby direct to redo the entire selection process and even give effect to such selection process. In wake of such observations, we find no merit in the appeals and the same are accordingly, dismissed. No order as to costs. Consequently, the connected Civil Applications for stay also stand disposed of.