Allahabad High Court
Renu Chandel vs Secretary, Up Higher Education Service ... on 3 August, 2023
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Neutral Citation No. - 2023:AHC:155209 Court No. - 35 Case :- WRIT - A No. - 12593 of 2023 Petitioner :- Renu Chandel Respondent :- Secretary, Up Higher Education Service Commission Counsel for Petitioner :- Arti Raje Counsel for Respondent :- Gagan Mehta Hon'ble Vikas Budhwar,J.
Today when the matter has been taken up, Sri Gagan Mehta has produced before this court the instructions under the signature of the Deputy Secretary of the Commission dated 28.7.2023 which is taken on record.
Heard Ms. Arti Raje, learned counsel for the writ petitioner and Sri Gagan Mehta, learned counsel who appears for the sole respondent.
The case of the writ petitioner is that an Advertisement No.50/2021 was published by the Secretary, Uttar Pradesh Higher Education Service Commission, Prayagraj for filling up of post of Assistant Professor in different disciplines.
The writ petitioner claims to have been an aspirant and armed with the necessary qualifications for the said post applied online. As per the writ petitioner 25th February, 2021 was the date commencing the submission of online registration and the same was also the date for deposit of the online fees. 26th March, 2021 was for the date fixed registration and the last date for submission of online fees was 26th March 2021 and further the last date for submission of online application was 27th March, 2021. As per the petitioner she applied before the last date however due to inadvertent, bona fide error though she belongs to EWS category but she filled the category to be under general and a registration number was also allotted to her, 200006863484. The writ petitioner further claims to gather knowledge that she had wrongly opted under general category as she belonged to EWS category so she preferred an application on 26.11.2021 before the Secretary, Uttar Pradesh Higher Education Service Commission, Prayagraj seeking the rectification of the category while incorporating EWS in place of General. Subsequently, as per the writ petitioner the written examination was conducted on 28.11.2021 in which she qualified and thereafter she appeared in the interview held on 30.6.2022.
The grievance of the writ petitioner is that despite the fact that she is entitled to be conferred and extended the benefits under EWS category but she has been treated to be under general category and thus she could not get the marks over and above the cut off mark so provided for EWS category. The writ petitioner further claims to have preferred Writ-A No.10206 of 2023 before this Court seeking consideration of her claim under EWS category instead of general category. However learned counsel for the respondent apprised the Court that already results have been declared on 2.7.2022 thus, the writ petition was not be entertained and after taking into note the objection of the respondents, the said writ petition came to be decided while passing of following order which is quoted hereunder:-
"1. The contention of the learned counsel for the petitioner is that while filling up form for selection on the post of Assistant Professor (English) advertised by U.P. Higher Education Services Commission, the petitioner erroneously filled up her category as General Category, though she belongs to Economically Weaker Section (EWS).
2. The case of the petitioner is that she moved certain applications requesting correction in the category, however, the applications have not been considered so far and, therefore, this petition has been filed seeking a writ of mandamus commanding the respondent to consider the candidature of the petitioner as EWS Category.
3. Sri Gagan Mehta, learned counsel for the Commission has argued that written examination was held on 28.11.2021 and the result has already been declared on 03.07.2022. He submits that no document has been annexed to demonstrate or establish that the petitioner belongs to EWS category and, even otherwise, at this stage, the request of petitioner cannot be considered, particularly, when the select list has been finalized.
4. Learned counsel for the petitioner submits that she may be permitted to withdraw this writ petition to file a fresh petition with appropriate prayers to challenge the select list or to grant any other relief on the basis of her alleged candidature as a person belonging to EWS category.
5. The petitioner may take appropriate recourse as the Court is of the opinion that the reliefs claimed in the present petition cannot be granted at this stage.
6. The petition is dismissed as withdrawn with liberty as aforesaid."
The writ petitioner thereafter has preferred the present writ petition, questioning the select list pertaining to the subject English pursuant to the Advertisement No.50 of 2021 declared by the respondents on 2.7.2022 and mandamus commanding the respondents to consider the candidature of the writ petitioner under EWS category.
Learned counsel for the petitioner submits that there is no dispute to the fact that the writ petitioner belongs to EWS category as she possessed the relevant certificate in that regard, however due to inadvertent bona fide error beyond the control of the writ petitioner, she erroneously marked her category under general category instead of EWS category, however even before the written examination about two days prior to it she had preferred an application before the Commission seeking rectification in this regard. She thus further submits as soon as she realised that there was error she tried to rectify the same and had the said rectification being done within the time then the writ petitioner category would have been changed from general to EWS category and she has been denied of the benefits of status which she holds.
Learned counsel for the respondent, countering the submission of learned counsel for the petitioner has sought to contend that as per the terms and conditions of the advertisement in question a time line has already been provided and there is a specific stipulation contained therein regarding the governance of the contingencies wherein whereat certain omissions have been done by the applicant/candidate with regard to filling up of the application form. He submits that the last date of submission of on line application form dated 27.3.2021 and as per Clause 1.6 in case any changes were sought to be made regarding the category etc. then a fresh online application form was to be submitted within the time stipulated therein and in the wake of the fact that the second online application form has been filed the earlier application form would stand redundant and consideration would be made on the basis of the fresh application form. He further invites the attention of the court towards Clause 1.12 so as to further contend that in the application form preferred no amendments or correction are permissible and only recourse would be to submit another application form (fresh application form before the next date fixed).
Sri Mehta has also relied upon a decision in the case of Pawan Kumar and others vs. State of U.P. and others reported in 2021 (1) ADJ 185 while referring to para 3, 47 and 48 wherein it has been stipulated that candidate does not possess any indefeasible right for getting the applications corrected as the same is subject to terms and conditions mentioned in the advertisement in that regard. He further submits that since the writ petitioner did not abide by the terms and conditions of the advertisement and even in fact sought correction while filing an application that too after the last date, thus, the same was not considered. Lastly he submits that already results have been declared on 2.7.2022 and on earlier occasion when the writ petitioner filed Writ-A No.10206 of 2023 the same was in the year 2023 and merely because liberty was accorded to file fresh writ petition would not cloth the writ petitioner to overcome the hurdle of the objection of delay and latches.
Since Sri Gagan Mehta has made a statement at bar that he is possessing the requisite instructions with him and he does not propose to file any response to the writ petition is being decided at fresh stage.
Undisputedly, an advertisement was issued for the post of Assistant Professor in various subjects including English. It is further not even disputed that the advertisement in question contains certain terms and conditions being last of date submission of application form and further Clause 1.6 provides that in case there is any discrepancy or any error in online application form then the same can be corrected in such manner that afresh on line application form is to be submitted being the last date and further as per Clause 1.12 no correction is permissible in the existing form.
Parties are also in agreement that on 26.11.2021 the writ petitioner has sought correction incorporation of the category as EWS in place of General which is the post the last date of submission of application form i.e. 27th March, 2021 and two days prior to the written examination. Since the writ petitioner has not challenged the said terms and conditions of the advertisement and further she has not sought correction as per the procedures provided therein and in the wake of the fact that the results have already been declared on 2.7.2022, thus this Court declines to interfere and to come in rescue of the writ petitioner. Moreover, as held in the case of Pawan Kumar (Supra) no indefeasible right vest with the candidate so seek correction as it is subject to the terms and conditions of the advertisement.
In view of above, I do not find the case to be fit one for exercise of under Article 226 of the Constitution of India.
Accordingly, the writ petition is dismissed.
Order Date :- 3.8.2023 piyush