Rajasthan High Court - Jaipur
Nirma Kumari vs State (Panchayati Raj )Ors on 27 November, 2017
Author: Ashok Kumar Gaur
Bench: Ashok Kumar Gaur
HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT
JAIPUR
S.B. Civil Writ Petition No. 16743 / 2017
Nirma Kumari D/o Shri Ranglal Gurjar, Aged About 25 Years, R/o
Village & Post Sandera, Tehsil Peeplu, Distt. Tonk (raj.)
----Petitioner
Versus
1. State of Rajasthan Through Secretary, Rural Development &
Panchayati Raj Department, Government of Rajasthan,
Secretariat, Jaipur.
2. Secretary, Education Department, Government of Rajasthan,
Secretariat, Jaipur.
3. Chief Executive Officer, Zila Parishad, Chittorgarh.
4. District Education Officer, Elementary Education, Chittorgarh.
----Respondents
_____________________________________________________ For Petitioner(s) : Mr.Laxmi Kant (Malpura), Adv.
For Respondent(s) : Mr.S.K.Gupta, Adv.
_____________________________________________________ HON'BLE MR. JUSTICE ASHOK KUMAR GAUR Order 27/11/2017 The present writ petition has been filed by the petitioner for seeking a direction to give her appointment on the post of Teacher Grade-III Level-1 at Zila Parishad, Chittorgarh by considering her candidature in Special Backward Class (SBC) category. The petitioner has further prayed that she should be permitted to participate in the selection process as per the revised result and her documents verification should be permitted by the Court.
The brief facts of the case are that different Zila Parishad issued advertisement in the year 2013 for making recruitment on (2 of 17) [CW-16743/2017] the post of Teacher Grade-III. The Zila Parishad, Chittorgarh issued advertisement on 11th August, 2013 and last date of submission of the form was 04th September, 2013.
The candidates were to submit online application forms. The note appended to the procedure of filling online application form is quoted hereunder:-
"uksV % I vkosnu }kjk izFke ,oa f}rh; nksuks Lrjks dh ijh{kk gsrq vkosnu djus dh fLFkfr esa nksuks Lrjks dh ijh{kk gsrq Js.kh vuqlkj fu;r 'kqYd bZ&fe= fd;ksLd@tu lqfo/kk dsUnz (C.S.C.) ij i`Fkd i`Fkd tek djkuk gksxk rFkk vkWuykbZu vkosnu i= Hkh i`Fkd i`Fkd Hkjus gksaxsA II izR;sd vkWuykbZu vkosnu dk fu/kkZfjr lsok 'kqYd :i;s 30@& ¼:i;s 20@& vkosnu i= Hkjus gsrq $ :i;s 10@& ijh{kk 'kqYd tek djkus gsrq½ dh jkf'k vfrfjDr :i ls lHkh dks nsuh gksaxhA III vkWuykbZu vkosnu esa lqfo/kk gsrq vkosnd vkosnu i= dk izk:i osclkbZV www.examtgt.rajasthan.gov.in ls MkmuyksM djys vkSj mls vkWuykbZu vkosnu Hkjus ls iwoZ gkFk ls HkjysA ;g izk:i bZ&fe= fd;ksLd ;k tu lqfo/kk dsUnz ij fu%'kqYd miyC/k gksxkA IV vkosnd viuk vkWuykbZu vkosnu i= vfUre :i ls Hkstus ls iwoZ mldh izfof"V;ks dk fizUVvkmV ysdj vk'oLr gks ysos fd lHkh izfof"V;ka lgh lgh Hkjh xbZ gSA tks vH;FkhZ n`f"Vnks'k@de n`f'V Js.kh esa vkosnu dj jgs gS] mUgsa vkosnu i= ds lkFk bl vk"k; dk lgefr i= izLrqr djuk gksxk fd vkWuykbZu Hkjs x;s vkosnu dks mUgksaus iw.kZ:i ls lgh lgh lqu ,oa le> fy;k gSA ,rnFkZ iqf'V Lo:i vkWuykbZu vkosnu i= dk fizaV ysdj ml ij vius fdlh utnhdh fj'rsnkj ds gLrk{kj ¼e; uke o irk½ djokdj bZ&fe=@lh,llh ds lapkyd dks tek djk;saxsA V vkosndksa dks lqfo/kk ds fy;s jkT; ds leLr bZ&fe= fd;ksLd rFkk tu lqfo/kk dsUnz (C.S.C.) dh lwph osclkbZV www.examtgt.rajasthan.gov.in ij miyC/k gSA VI jktLFkku jkT; ls ckgj ds vH;FkhZ] tgka bZ&fe= rFkk tulqfo/kk dsUnz (C.S.C.) ugha gS] os osclkbZV www.examtgt.rajasthan.gov.in ij miyC/k lwph ds vuqlkj muls O;fDrxr :i ls lEidZ dj ijh{kk 'kqYd tek djk ldrs gSA lqfo/kk ds fy, muds nwjHkk'k uEcj Hkh osclkbZV ij miyC/k gSA "
The advertisement also contained clause No.19, wherein it was provided that the candidates were to furnish correct and complete details while submitting the online application form and all the information submitted by the candidates was to be the sole (3 of 17) [CW-16743/2017] responsibility of such candidates and the particulars which were to be filled in the application form, no correction was to be permitted in such information being furnished by the candidates. The relevant Clause-19 of the advertisement is reproduced hereunder:-
"19- --i;k /;ku nsosa %& ¼1½ vkosnu i= izLrqr djus dh vfUre fnukad 4-9-2013 jkf=a 12-00 cts rd vkWuykbZu vkosnu i= Lohdkj fd;s tk;saxsA ijUrq vkosnd viuk ijh{kk 'kqYd vafre frfFk ls nks fnu iwoZ vFkkZr fnukad 2-9-2013 dks lk;a 6 cts rd gh tek djk ldsaxsA fnukad 4-9-2013 dks jkf= 12- 00 cts i'pkr mDr osclkbZV ij miyC/k vkWuykbZu flLVe Lor% gh cUn gks tk;sxkA vkWuykbZu vkosnu dh leLr izfof'V;k¡ iw.kZ ,oa lgh ugh gksus ij vkosnu i= vLoh--r dj fn;k tkosxkA vkWu ykbu vkosnu i= esa nh xbZ tkudkjh ds fy, ftEesnkjh vkosnd dh gksxhA vkosnu i= esa dh xbZ izfof'V;ksa esa vfUre fnukad ds ckn fdlh Hkh izdkj ds ifjorZu dh vuqefr ugha nh tk;sxh vkSj uk gh bl ckcr izLrqr fdlh izkFkZuk i= ij fopkj fd;k tk;sxkA vkWu ykbZu ds mijkUr ml vkosnu i= ds Øe esa vkosfnr in ,oa vkosfnr Js.kh esa la"kks/ku fdlh Hkh fLFkfr esa vuqKs; ugh gSA"
There was further note no. (9) in clause-19 that all the information relating to the examination will be available on the website www.examtgt.rajasthan.gov.in. The note (9) is reproduced hereunder:-
"¼9½ bl lh/kh HkrhZ izfr;ksxh ijh{kk dh lEiw.kZ tkudkjh osclkbZV www.examtgt.rajasthan.gov.in ls izkIr dh tk ldrh gSA"
The petitioner belongs to Special Backward Class and to that effect, she has also filed certificate Annexure-5 in the writ petition, dated 22nd June, 2012.
The petitioner filled her application form Annexure-6 and where against column of category she had mentioned OBC. The hard copy/photostat copy downloaded by the petitioner of online application form is also filed as Annexure-6. The application form, (4 of 17) [CW-16743/2017] in the last, contained an undertaking, which is reproduced hereunder:-
" eS ,rn n~okjk ?kks'k.kk djrk@djrh gw¡ fd bl vkosnu i= esa nh x;h leLr lwpuk,a esjs loksZRre ,oa fo"okl ds vuqlkj lR;] iw.kZ ,oa lgh gSA esjs n~okjk lacaf/kr fu;eksa@foKfIr dh "krksZa dk lko/kkuhiwoZd v/;;u dj fy;k x;k gSA r`rh; Js.kh v/;kid lh/kh HkrhZ izfr;ksxh ijh{kk ds iwoZ vFkok i"pkr esjs n~okjk nh x;h lwpuk,a xyr] vlR;] viw.kZ] vFkok vik=rk ik;s tkus ij ftyk ifj'kn esjs fo:n~o dk;Zokgh dj ldsxh] ftlds fy;s eSa Lo;a mRrjnk;h jgqaxk@jgqaxhA eSa ;g Hkh ? kks'k.kk djrk@djrh gw¡ fd eSa r`rh; Js.kh v/;kid lh/kh HkrhZ izfr;ksxh ijh{kk esa lfEefyr gksus ds fy;s ik=rk ls lacaf/kr vk;q lhek] "kS{kf.kd ;ksX;rk,as] jktLFkku v/;kid ik=rk ijh{kk dh vgZrk ,oa vko";d izf"k{k.k bR;kfn iwjh djrk@djrh gw¡A eq>s ;g iw.kZ tkudkjh gS fd vkuykbu izkFkZuk i= izLrqr djus ds ckn la"kks/ku dh vuqefr ugha gksxh ,oa ,sls fdlh Hkh izkFkZuk i= ij fopkj ugh fd;k tkosxkA "
The respondent-Panchayati Raj Department declared the result of the examination initially in the year 2015 and started giving appointments. There was some dispute with respect to grant of qualifying marks for the Rajasthan Teachers Eligibility Test (RTET) and as such, the matter went to the Supreme Court and Supreme Court granted permission to State Government to fill the posts with relaxed norms.
The respondents prepared the revised result and petitioner is said to have secured 136.09 marks in the recruitment examination and 88 marks in RTET and as such, she has asserted, that she secured 153.69 total marks.
The petitioner has further submitted that after the revised result for Teachers Grade-III Level-1, cut off marks were published by Zila Parishad, Chittorgarh and in SBC category, the cut off was 151.13 marks while for other Backward Class (OBC), the cut of mark was 159.92.
The petitioner has submitted that there was press-note (5 of 17) [CW-16743/2017] dated 19th August, 2017, where candidates were called for document verification and for Level-I, the document verification was to take place on 28th August, 2017.
The petitioner has submitted that she belongs to SBC category and she was having the requisite qualification and eligibility for the post of Teacher Grade-III Level-1, but while submitting online application form, due to inadvertence, a mistake committed by e-mitra Operator in the application form in the column of category, the category OBC (Female) was mentioned in place of the category SBC (Female). The petitioner has further said in her petition that copy of the Caste Certificate, which she submitted also belongs to SBC category and the wrong mentioning of the category as OBC was a human error.
The petitioner has further submitted in her petition that after declaration of cut off marks, when she appeared for the document verification on 28th August, 2017 in the office of Zila Parishad, the respondents did not allow the petitioner for document verification/counselling.
The petitioner thereafter submitted a representation to the respondents on 19th September, 2017 and made a request that there was a human error which was committed while filling the online application form and wrong category of OBC was filled, while petitioner belongs to SBC category and as such, request was made to condone the human error and to consider the case of the petitioner for appointment.
The petitioner feeling aggrieved by non-consideration of her case in SBC category has filed the present petition.
(6 of 17) [CW-16743/2017] Mr. Laxmikant, the learned counsel for the petitioner has submitted that the mistake, which was committed by the petitioner at the time of filling of the online application form, was human error and inadvertently, petitioner though not belonging to OBC category, mentioned such category and in fact, she was SBC candidate and as such, only due to wrong furnishing of the category, the petitioner's right of appointment cannot be defeated.
Mr. Laxmikant has further submitted that this Court in catena of cases have taken a view that if there is a human error or technical failure, such lapses/errors can be condoned by the employer and the person is required to be considered in the correct category, to which one belongs.
Mr. Laxmikant has placed on record an order dated 26 th May, 2017 issued by Rural Development and Panchayati Raj Department in respect of correction of the human errors/editing of wrong entries. The contents of letter are reproduced as herreunder:-
" fo'k;kUrxZr ys[k gS fd ekuuh; mPp U;k;ky;] t;iqj }kjk ,l-ch-flfoy fjV ;kfpdk la- 6065@2017 esa fnukad 02-05-2017 dks vkWuykbu vkosnu Hkjrs le; gqbZ ln~Hkkoh xyrh dks lq/kkjus dk vkns"k fn;k gSA fu.kZ; dk izHkko"khy Hkkx ¼Operative Part ½ bl izdkj gS& "Considering the nature of mistake, which seem bona fide, the present petition is allowed and the respondents are directed to permit the petitioner to carry corrections and instead of marks of B.Com. Part-I, in column meant for Higher Secondary, marks of Higher Secondary of the petitioner be noted and corrected."
bl rjg ds dqN vU; izdj.kksa esa Hkh ekuoh; U;k;ky; }kjk fu.kZ; fd;s x;s gSA vr% U;k; fgr esa foHkkx }kjk ;g fu.kZ; fd;k x;k gS fd dfu"B fyfid lh/kh HkrhZ] 2013 esa vkWuykbZu vkosnu Hkjrs le; jgh ln~Hkkoh ekuoh; Hkwy laca/kh U;kf;d izdj.kksa esa ekuuh; U;k;ky; }kjk fn;s x;s fu.kZ; ds fo:) vihy u dh tkdj U;kf;d fu.kZ; dh ikyuk dj yh tkosA vr,oa (7 of 17) [CW-16743/2017] leku izd`fr ds U;kf;d izdj.kksa esa U;k;ky; vkns'kksa dh ikyuk esa izdj.kokj vkns'k ikfjr dj ikyuk lqfuf'pr dh tkosA =qfV lq/kkj ls lacaf/kr U;kf;d fu.kZ; izkIr gksus ij lacaf/kr eq[; dk;Zdkjh vf/kdkjh vkWuykbZu eksM ij gh izdj.k dk fuLrkj.k djsaxs o vkns'kkuqlkj =qfV lq/kkj lqfuf'pr djsaxsA""
Mr. Laxmikant submits that this Court in S.B.Civil Writ Petition No.906/2017 (Shimala Jat Vs. State of Rajasthan & Ors.), decided on 27th January, 2017, has permitted the candidate to change her category and correction was permitted in the online application by this Court. Mr. Laxmikant has further cited the order passed by this Court in S.B.Civil wRit Petition No.6065/2017 (Ram Prabhat Gurjar Vs. State of Rajasthan & ors.), decided on 2 nd May, 2017, where bonafide mistake committed in furnishing the marks of educational qualification was treated as a human error/bonafide mistake and as such, the Court has allowed to make corrections in the relevant column of educational qualification.
Mr. Laxmikant has further relied on the judgment passed in D.B.Civil Special Appeal (Writ) No.1700/2017 (Kavita choudhry Vs. The Registrar (Examination) & Ors., decided on 1 st November, 2017. Mr. Laxmikant has submits that the Division Bench has taken a view that to err is human and if the mistakes are committed and no prejudice is caused, rectification of such mistakes can be permitted.
Mr.Laxmikant has further cited judgment of this Court in S.B.Civil Writ Petition 7159/2017 (Dinesh Kumar Mahawar Vs. RPSC & Anr.), decided on 11th October, 2017 where this Court had allowed correction in application form if the correct option was not filled by the candidate at the time of filling the application form.
(8 of 17) [CW-16743/2017] Per contra, Mr.S.K.Gupta, learned AAG has submitted that the form in question was filled online by the petitioner on 26 th August, 2013 and the note appended to the said form also makes it very clear that in no eventuality, the correction would be permitted. Mr. Gupta has further submitted that the undertaking given by the candidate binds him down and he/she cannot change the stand by saying that there has been human error while filling the application form. Mr. Gupta has submitted that the present petition is filed for correction of entry made in 2013, in the year 2017, and as such, is a belated petition and suffers from laches and delay.
Mr. Gupta submits that the petitioner was not having the requisite cut off marks when initially appointments were made in 2015 and now, she has developed her fancies by taking a chance to get the appointment after declaration of revised result.
Mr. Gupta submits that errors committed by human are always human errors. Mr. Gupta submits that the category which has wrongly been mentioned along with the certificate, cannot be termed as human error and that is an afterthought of the petitioner after she finds herself in the revised cut off marks, in SBC category.
Mr. Gupta submits that the mistake which is sought to be rectified by the petitioner, affects the rights of other parties or a person who has already been appointed in SBC category and such person cannot be made to suffer, on account of the prayer, which is being sought before this Court by the petitioner. Mr. Gupta further submits that the law on the point of permitting the change (9 of 17) [CW-16743/2017] of category is well settled by the Supreme Court and he cites the judgment rendered in the case of Union of India & Ors. Vs. Dalbir Singh & Anr., reported in (2009)7 Supreme Court Cases 251, where the Supreme Court has said that if a candidate has applied in a particular category for selection, later on, change of category cannot be permitted and the person whose initial consideration was for particular category, the same would remain and no changes would be permissible.
Mr. Gupta has submitted that the judgments, which have been cited by the learned counsel for the petitioners do not settle the controversy and they do not apply to the change of category. Mr. Gupta submits that the judgment cited by learned counsel for the petitioner in the case of Ram Prabhat Gurjar Vs. State of Rajasthan & Ors. (supra) was in respect of only bonafide mistake permitted regarding column for marks of educational qualification. Mr. Gupta submits that the column of the education qualification or furnishing details about the marks cannot be compared with the change of category. Mr. Gupta further submits that the judgment of Dinesh Kumar Mahawar Vs. RPSC & Anr. (supra), which has been cited by the learned counsel for the petitioner, also does not help him as in that case, the options were invited after holding the examination and if a candidate did not have option while editing his application due to failure of computer, the same cannot be applied to the present case.
Mr. Gupta further submits that the judgment passed by this Court in the case of Shimala Jat (supra) is also on the analogy that due to error in the application form, the marital status was (10 of 17) [CW-16743/2017] wrongly furnished as divorced lady and in fact, she was not divorced lady, Mr. Gupta submits that this Court taking the view that earlier, the petitioner had approached this Court where no order were passed by the respondent and the representation was not examined properly, this Court in such eventuality passed the order.
Mr. Gupta submits that as far as judgment of Division Bench in Kavita Choudhary's case (supra) is concerned, the Division Bench itself has taken note of the fact that there can be two kinds of mistakes. He submits that the Division Bench has made it clear that first kind of mistake would be of those types where nobody is affected by mistake and second is where a third party is affected by a mistake. Mr. Gupta submits that the present case, the moment petitioner is considered for appointment as SBC candidates, the other candidate who has already been given appointment in SBC (Female) category, her rights would be affected and even as per the decision of the Division Bench, the petitioner is not entitled for any relief.
Mr. Gupta submits that as far as order issued by the State Government is concerned, the same only takes care of those eventualities where there has been bonafide human error and editing of wrong entries to the same effect are to be permitted. Mr. Gupta submits that the judgment passed in Ram Prabhat Gurjar's case (supra) was sought to be implemented and in that background where mistake was only with respect to change of marks in educational qualification column, the same was permitted. Mr. Gupta submits that the order issued by the (11 of 17) [CW-16743/2017] Government dated 26th May, 2017 would not govern the case of the petitioner and it cannot be applied like order application to all the mistakes which can be committed while filling the application form.
I have considered the rival submissions of learned counsel for both the parties.
In the opinion of the Court, the condition which is contained in the advertisement makes it very clear that while filling the online application form, the candidates were required to furnish the correct information and in case, any incorrect information was furnished, the liability was of the candidate who had filled such form and furnished the information. The Court further finds that the undertaking which is attached to the online application form, also makes it very clear that whatever information furnished by a candidate about their eligibility was to be treated as final and after submitting the online application form, no permission was to be given to such candidate to change category and Department was not bound to consider such change of information. The Court further finds that the advertisement contained a special note that all the information relating to the recruitment will be available on the official website, which is already quoted above.
Considering the facts of the present case that the application was filled by the petitioner on 26 th August, 2013, the petitioner has woken up from slumber in 2017 after declaration of revised result and she has submitted the application for making correction first time in the month of September, 2017, if the contention of the learned counsel for the petitioner is accepted, the same would (12 of 17) [CW-16743/2017] mean that the corrections should be permitted upto the last selection being made and candidate can any time come to the employer and say that there has been a bonafide mistake in filling the application form.
The lapse of 4 years after submission of the application form, particularly when the petitioner had received hard copy of online application form immediately, it is not conceivable that petitioner would not come to know about her category being wrongly mentioned as per her own averment.
The Court finds substance in the submission of Mr. S.K. Gupta, learned AAG that petition has been filed by the petitioner at belated stage when the revised result has already been published and appointments are being made as per the revised result. No doubt, there is no limitation or the time prescribed for filing the writ petition under Article 226 of the Constitution of India, however, a person who alleges breach of right, has to approach the Court within reasonable time raising the grievance.
The Court is now presently concerned with the recruitment which started in the year 2013, but for one reason or another, the same could not be finalized and now, at this juncture, if this kind of correction of application, whatever in nature, is permitted, the selections would never be finalized in any eventuality. The Court finds that the petitioner ought to have been vigilant after receipt of hard copy and should have approached the Court immediately.
The submission of the learned counsel for the petitioner that there is a judgment by this Court and as such, the view has already been taken while permitting the change for correction in (13 of 17) [CW-16743/2017] the entries or to rectify the human errors, I have considered all the judgments cited before me. In my opinion, the decision of the Division Bench passed in Kavita Choudhary's case itself makes it clear that the mistakes can be of two kinds and first kind of mistake would be where nobody is affected by a mistake. The second is where a third party is affected by a mistake. In the humble opinion of this Court, the present case falls in the second category. The person who has already been appointed as SBC candidate is definitely going to be affected by inclusion the name of the petitioner. This Court has further clarified that where rectification of mistake causes a prejudice, the same cannot be permitted. The relevant para of the judgment of the Division Bench is reproduced hereunder:-
" 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."
It is also significant to note that the judgment passed by the Division Bench was dealing with the situation where the candidate had participated in the selection process for the post of LDC initiated by the High Court in February, 2017 and the exams were in two stages and the petitioner had immediately approached the Court and as such, the Court found that if the candidate had given the wrong category, the change should have been permitted. In humble opinion of the Court, the said decision of the Division Bench itself makes it clear that person who seeks change of (14 of 17) [CW-16743/2017] category, has to also keep in mind that by such correction, third party right should not be affected.
As far as the judgment cited by the learned counsel for the petitioner in the case of Shimala Jat is concerned, the Court finds that coordinate Bench has considered the fact that the petitioner in that case had lost her husband on 31 st October, 2012 and after death certificate was issued to her on 16.11.2012, she filled online application form on 18th April, 2013 through e-mitra and due to human error in her application form, the marital status was wrongly filled as Divorced. The said petitioner approached the authorities for making necessary correction in the application form and that was not permitted and then she filed writ petition. The representation as directed by the Court was not examined and then she came in the second round of litigation. This Court while considering all these facts that petitioner was a widow on the day when she filled the application form and she annexed death certificate along with the application form, she was not considered as 'widow' and was wrongly considered as 'divorcee', the Court looking to the marital status of that petitioner treated to be a human error and in the given facts and circumstances, exercised jurisdiction under Article 226 of the Constitution of India. In the humble opinion of the Court, the said judgment was passed in peculiar facts and considering the status of the petitioner as she was a widow and as a special case, the Court permitted her to change the category.
The other judgment cited by the learned counsel for the petitioner, Mr.Laxmikant, is passed in the case of Ram Prabhat (15 of 17) [CW-16743/2017] Gurjar (supra), the Court finds that coordinate Bench in that case found that while filling the column meant for educational qualification, the candidate had given the marks of B.Com Part-I instead of higher secondary marks, the Court has considered the stand of the State that it was bonafide mistake and it can occur on part of anybody in day to day life and as such, the Court allowed the permission to the petitioner in that case to carry out correction and permitted that instead of marks of B.Com Part-I in column meant for higher secondary, the marks of higher secondary be noted. In the opinion of the Court, the said judgment also deals with the situation where the Court permitted the change of marks which was wrongly mentioned in the column. The change of marks/permitting such mistake has a different impact compared to change of category of a candidate.
The reliance on the order of the State Government by the learned counsel for the petitioner, dated 26 th May, 2017, suffice it to say that the State Government had only permitted the editing of certain entries and further the human errors committed as per the judgment passed in S.B.Civil Writ Petition No.6065/2017 (Ram Pratap Gurajar Vs. State of Raj. & Ors.). The said order issued by the State Government cannot be read as if every error committed by a candidate can be permitted to be rectified. The Court finds that the said order also took a decision because of the concession given in the Court by the counsel for the State that wrong mentioning of marks can be a human error and as such, in that background, the judgment was passed. The same does not help to the case of the petitioner.
(16 of 17) [CW-16743/2017] Mr. Gupta has submitted that the judgment of the Apex Court in the case of Union of Inida Vs. Dalbir Singh & Anr., reported in (2009)7 Supreme Court Cases 251, makes it very clear that a candidate who applied for consideration of his case under OBC category, at no point of time, had taken as exception to the preparation of the merit list and the such candidate was not permitted to change his category against General merit because he secured better percentage of marks than the last selected candidate in the General merit.
The Apex Court though was not dealing with the filling up the application form or mistakes being committed, however, the principle which has been laid by the Apex Court is that if a candidate applied in a particular category, he cannot be permitted to switch over to another category.
In the present case also, it seems that the petitioner after declaration of revised result found that now, she has more than cut of marks in SBC category and then, she turned around and said that she wrongly filled OBC category while filling the application form and as such, sought change of her category due to the revised result. The Court has already observed in earlier paras the moment the application form was downloaded, if there was some error, may be there was stipulation in the application form that changes will not be permissible, yet the Court could examine bonafide of the petitioner and impact of any human error, if at all, is to be considered as human error or not. In the opinion of the Court, the stipulations in the advertisement, the undertaking in the application form, the time gap taken by the (17 of 17) [CW-16743/2017] petitioner, all lead to situation where the petitioner seeks change of her category and this results into unsettling the entire recruitment process by inclusion of persons.
In the opinion of the Court, the prayer sought by the petitioner is not legally sustainable and the writ petitions is, accordingly, dismissed.
(ASHOK KUMAR GAUR)J. NK/39