Central Administrative Tribunal - Delhi
Nitish Kumar vs Union Public Service Commission (Upsc) on 21 March, 2022
1
O.A. No. 597/2022
Central Administrative Tribunal
Principal Bench: New Delhi
O.A. No. 597/2022
Order reserved on: 14.03.2022
Order pronounced on: 21.03.2022
Hon'ble Mrs. Manjula Das, Chairman
Hon'ble Mr. Mohd. Jamshed, Member (A)
Nitish Kumar s/o Sh. Sunil Kumar,
Vill-Damodarpur,
Post Office:- Damodarpur,
District:- Lakhisarai-811311,
(Bihar). ...Applicant
(By Advocate: Mr. M. K. Bhardwaj)
Versus
Union Public Service Commission,
Through its Secretary,
Dholpur House, Shahjahan Road,
New Delhi - 110069.
...Respondent
(By Advocate: Mr. R. V. Sinha)
ORDER
Hon'ble Mrs. Manjula Das, Chairman:
The applicant has filed the instant OA under Section 19 of the Administrative Tribunals Act, 1985 seeking the following reliefs:
"(i) Issue a direction/order to the respondent to quash the decision dated 28.02.2022 by which the candidature of the applicant for the UPSC Civil Services Examination (hereinafter referred to as CSE), 2021 has been cancelled by an arbitrary, whimsical and erroneous order.
(ii) direct the respondent to consider the candidature of the applicant for CSE 2021.2 O.A. No. 597/2022
(iii) Issue or pass any direction or order which this Hon'ble Tribunal may deem fit and proper under the facts and circumstances of the case."
2. Union Public Service Commission (UPSC) vide notification dated 04.03.2021 announced the Civil Service Examination (CSE) 2021 including all the details viz. eligibility conditions, number of attempts and the examination format, etc., and the last date of receipt of application for CSE 2021. It is submitted that as per Rule 3 (II) of the notification, a candidate must have attained the age of 21 years and should be below the age of 32 years on 01.08.2021 i.e. the candidate must have been born not earlier than 02.08.1989 and not later than 01.08.2000. In response to the aforesaid notification, the applicant applied for the CSE-2021, but while submitting his application, he committed an inadvertent error in mentioning his date of birth as 06.10.1991 instead of 06.11.1991. It is pleaded that such an inadvertent error has absolutely no effect on the eligibility of the applicant. It is further pleaded that since a close family member of the applicant had suffered from COVID-19 and he too having the symptoms of Covid-19, was not able to fill up the form personally and, therefore, requested his brother to fill the form on 22.03.2021 as per the prescribed deadlines. It is further pleaded that under the given circumstances, the brother of the applicant 3 O.A. No. 597/2022 inadvertently selected the incorrect month in his date of birth as 'October' instead of 'November' in the portal.
3. It is submitted that the applicant appeared in the preliminary examination of CSE 2021 and was declared successful. However, while filling up the Detailed Application Form (DAF), the portal for registration asked for the date of birth. This was the first time when he realized that his date of birth had been inadvertently mentioned as 06.10.1991 instead of 06.11.1991. Immediately thereafter, the applicant preferred an affidavit to bring this inadvertent error to the notice of the respondents, stating therein that his name and date of birth have been incorrectly mentioned. It is, thus, submitted that there was no intention of hiding or gaining any undue advantage on the part of the applicant. In support of his claim the applicant has also submitted Secondary School passing certificate showing his date of birth as 06.11.1991. Thereafter, he appeared for the Civil Services main examination 2021 between 07.01.2022 and 16.01.2022. It is submitted that the applicant was shocked to receive a show cause notice dated 21.02.2022 for providing incorrect information qua his date of birth and name in the online application form of CSE 2021, by invoking Rule 5 (3) of the CSE Rules 2021. In response to the aforesaid show cause notice, the applicant submitted his reply dated 4 O.A. No. 597/2022 23.02.2022 explaining the circumstances under which the said inadvertent error was committed.
4. It is submitted by the applicant that the respondents without appreciating his reply, issued the impugned order dated 28.02.2022 cancelling his candidature on a hyper technical ground by ignoring the fact that he stood nothing to gain by mentioning incorrect date of birth or incorrect name in the application form; rather it was an inadvertent error. It is, therefore, submitted that the impugned order is contrary to the settled principles of law that UPSC cannot reject the candidature of candidates, like the applicant herein, for trivial slips, and that UPSC should have some elbow room to consider these inadvertent errors.
5. In support of his claim, the applicant has mainly relied upon the decision of the Hon'ble High Court of Delhi in Anuj Pratap Singh vs. Union Public Service Commission [WP(C) No.8415/2018 & CM No.32327/2018 decided on 04.09.2018 arising out of Tribunal's decision dated 10.07.2018 in OA No.1358/2018], amongst others. He submitted that in the said judgment, the Hon'ble High Court has reversed the aforesaid decision of the Tribunal by holding that the error on the part of the petitioner therein could not be treated as a misrepresentation or suppression 5 O.A. No. 597/2022 of facts. The applicant, therefore, seeks similar benefits as extended to the petitioner in Anuj Pratap Singh (supra).
6. Mr. R.V. Sinha, learned counsel for the respondent, in compliance with the order of this Tribunal dated 11.03.2022, has relied upon number of judicial pronouncements to contend that mistakes as regards the date of birth cannot be permitted to be rectified at subsequent stages. As regards the reliance upon the decision of the Anuj Pratap Singh (supra) by the applicant, the learned counsel submitted that the said judgment has already been stayed by the Hon'ble Supreme Court, vide its order dated 05.12.2018 passed in SLP No.28713/2018. Learned counsel for the respondent has also raised an objection that since DOP&T has not been impleaded, which is necessary party for adjudication of this case, the present OA deserves to be dismissed on this ground alone.
7. Heard Mr. M.K. Bhardwaj, learned counsel for the applicant and Mr. R.V. Sinha, learned counsel for the respondents at length.
8. The whole argument of the applicant is based upon the decision in Anju Pratap Singh (supra) wherein the Hon'ble High Court of Delhi has passed the following order:-
6O.A. No. 597/2022
"21. In the light of the above discussion, we are of the view that the error on the part of the petitioner could not be treated as a misrepresentation or suppression of facts. We are of the considered opinion that a just and equitable approach needs to be adopted in the present case, especially in view of the fact the petitioner has already cleared the stages of the preliminary examination and the main examination and we are informed that he was permitted to appear in the interview/ personality test for the CSE 2017. Moreover, in circumstances where the petition is an SC candidate and a qualified engineer from IIT, cancellation of his candidature at the final stage, would be a punitive action, completely disproportionate to bon-fide omission on his part.
22. For the aforementioned reasons, the impugned order dated 10.07.2018, passed by the Tribunal as also the respondents' decision dated 28.03.2018, cancelling the petitioner's candidature for the CSE 2017 cannot be sustained and are quashed and set aside. The respondents are directed to declare the petitioner's results for the CSE 2017 and, if found fit, process his application for selection in accordance with his merit in the said examination.
23. The writ petition is allowed on the aforesaid terms with no orders as to costs."
9. In the aforesaid decision, the petitioner therein had challenged the respondents order dated 28.03.2018 whereby his candidature for the CSE-2017 was cancelled on the ground that his date of birth had been wrongly recorded as 31.03.1991 in the application form submitted by him for preliminary examination. In that case the mistake on the part of the petitioner in mentioning his date of birth incorrectly has no bearing either on eligibility for the CSE- 2017 or on the benefits liable to be derived by him if he ultimately clears the selection and is appointed. 7 O.A. No. 597/2022
10. In the instant case also, the candidature of applicant, who appeared in the CSE-2021, has been cancelled on similar ground of wrong mentioning of his date of birth and name in the application form. In this case, the plea taken by the applicant is also similar to one taken by the petitioner in the case decided by the Hon'ble High Court of Delhi, inasmuch as the applicant also mentioned his date of birth in the application inadvertently without any intent to derive any benefit therefrom.
11. From the above illustration of the facts of the case before us and the one decided by the Hon'ble High Court, we find that the issue and the facts involved in both the cases are identical. However, we find that though the Hon'ble Supreme Court stayed the decision of the Hon'ble High Court in Anuj Pratap Singh (supra) vide order dated 05.12.2018, as produced by the learned counsel for the respondents, but subsequently the Hon'ble Supreme Court, vide its order dated 22.01.2019 passed the following order:-
"Leave Granted.
The appellant shall process the application of respondent no.1 including declare his results forthwith. Any further steps taken after declaration of results, however, shall be subject to the outcome of this appeal." (Emphasis supplied) 8 O.A. No. 597/2022
12. In view of the aforesaid interlocutory order of the Hon'ble Supreme Court, we are of the considered opinion that the issue in the instant OA, being identical to that of Anuj Pratap Singh (supra), can also be disposed of in the same terms.
13. The OA is accordingly disposed of and the impugned order dated 28.02.2022 is set aside. The respondents are directed to consider the candidature of the applicant for selection in CSE-2021 ignoring the inadvertent errors of trivial nature, i.e., mentioning of wrong date of birth and incorrect name. It is further directed that if the applicant is declared successful in the CSE (main) examination, he shall be permitted to appear in the interview/personality test to be held for the CSE 2021. It is made clear that any further steps taken after declaration of results, however, shall be subject to the outcome of the SLP No.28713/2018. There shall be no order as to costs.
(Mohd. Jamshed) (Manjula Das) Member (A) Chairman /Lg/ankit/