Allahabad High Court
Secy. Basic Edu. Board, Prayagraj And ... vs Jubeda Bano on 8 March, 2022
Author: Devendra Kumar Upadhyaya
Bench: Devendra Kumar Upadhyaya
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH A.F.R. Court No. - 2 Case :- SPECIAL APPEAL No. - 69 of 2022 Appellant :- Secy. Basic Edu. Board, Prayagraj And Others (In Wria-No.17495 Of 2021) Respondent :- Jubeda Bano Counsel for Appellant :- C.S.C. Counsel for Respondent :- Piyush Mishra Hon'ble Devendra Kumar Upadhyaya,J.
Hon'ble Mohd. Faiz Alam Khan,J.
(Order on application for Condonation of Delay) Heard learned counsel for the appellant-State authorities and learned counsel representing the respondent.
Having regard to the averments made in the affidavit filed in support of the application seeking condonation of delay, we find that the delay has sufficiently been explained.
Accordingly, the application is allowed and the delay in preferring the special is hereby condoned.
(Order on Special Appeal) Heard Shri Ran Vijay Singh, learned Additional Chief Standing Counsel for the appellants-State authorities and Mohd. Ali and Shri Piyush Mishra for the sole respondent. We have also perused the record available before us on this special appeal.
This special appeal filed under Chapter VIII Rule 5 of the Rules of the Court impeaches the judgment and order dated 16.08.2021 passed by the learned Single Judge whereby the writ petition filed by the respondent-petitioner, namely, Writ Petition No.17495 (S/S) of 2021 was allowed. Learned Single Judge quashing the order dated 14.07.2021 which was under challenge therein and simultaneously issued a direction to the appellant-State authorities to consider the candidature of the respondent-petitioner for appointment on the post of Assistant Teacher in primary school run by U.P. Basic Education Board by passing an appropriate order within three weeks.
At this juncture, we may note that by means of the order dated 14.07.2021 which has been quashed by the learned Single Judge by means of the judgment and order under appeal herein, the claim of the respondent-petitioner for appointment against the post of Assistant Teacher was rejected and accordingly the representation made by her in that regard was also rejected.
Submission on behalf of the appellants-State authorities is that the learned Single Judge while passing the judgment and order under appeal has erred in law inasmuch as the provisions contained in the Government Order dated 05.03.2021, the Government Order dated 04.12.2020 and the guidelines issued by means of the Government Order dated 01.12.2018 for considering the candidature/appointment of candidates against the post of Assistant Teacher have completely been ignored. It has been stated that the said guidelines and the Government Orders clearly provide that no candidate would be given any opportunity to rectify the mistake which may have crept in the on-line application form. It has also been argued that in such a situation the only option left with the authorities was to cancel the candidature of the respondent-petitioner.
Learned State Counsel has relied upon a judgment dated 27.10.2021 rendered by a Coordinate Bench of this Court in Special Appeal (D) No.716 of 2021, Richa Tripathi vs. State of U.P. and others, and it has, thus, been argued that in the said case of Richa Tripathi (supra) the candidate had furnished separate marks claiming that against the letter "T" and "P" it should be taken as "Total" and" Practical" and the same cannot be termed as "Theory" and "Practical" as in the column the only information sought was total marks. Referring to the Government Order dated 05.03.2021 the Division Bench in the said case of Richa Tripathi (supra) has observed that the said Government Order provided that in case any discrepancy is found in on-line application the candidature is liable to be rejected. The judgment and order in the case of Rich Tripathi (supra) further refers to a judgment of Hon'ble Supreme Court in the case of Jyoti Yadav and another vs. State of U.P. and others, Writ Petition (Civil) No.322 of 2021, whereby a bunch of Writ Petitions were dismissed by means of the order dated 08.04.2021 and the validity of the Government Order dated 05.03.2021 was upheld. Learned State Counsel has thus, submitted that the learned Single Judge while passing the judgment under appeal has not appreciated that the validity of the Government Order dated 05.03.2021 having been upheld, it will have its application in full strength in the present case as well and accordingly no illegality was committed by the State authorities by rejecting the candidature of the respondent-petitioner and by not offering her appointment for the reason that certain disclosures made by her in her on-line application form suffered from discrepancies. In the aforesaid view, the submission on behalf of the appellants-State authorities is that the instant special appeal is liable to be allowed and the judgment and order under appeal ought to be set aside.
On the other hand, learned counsel representing the respondent-petitioner has argued that so far as the validity of the Government Order dated 05.03.2021 is concerned, there can not be any dispute, however, the said Government Order will have no application in the facts situation of the present case as on account of the error relating to total marks in her high school examination conducted by Central Board of Secondary Education (hereinafter referred to as "C.B.S.E"), the respondent-petitioner did not put her in any advantageous position. Referring to the judgment rendered by Hon'ble Supreme Court in the case of Rahul Kumar vs. State of Uttar Pradesh & others, Writ Petition(s) (Civil) No(s).378 of 2021 decided by means of the judgment and order dated 29.06.2021, it has been argued that the Government Order dated 05.03.2021 envisages cancellation of candidature of a candidate who puts himself/herself in an advantaged position if certain error crept in the on-line application form.
We have given our anxious consideration to the rival submissions made by the learned counsel representing the respective parties.
So far as the facts of the present case are concerned, there is no dispute amongst the parties. It is only the question of applicability of the Government Orders dated 05.03.2021 and 04.12.2020 to the facts of the present case which is a bone of contention. However, for appropriately adjudicating the controversy and issues involved in this case, we may briefly refer to the facts of the case.
The State Government with a view to make appointment against 69,000 vacancies of Assistant Teachers in the Primary Schools run by U.P. Basic Education Board, Prayagraj, issued a Government Order on 01.12.2018. The said Government Order contains certain guidelines. According to the scheme of recruitment prevalent in the State of U.P. against the post of Assistant Teacher in the Primary Schools, the eligible candidates are required to fill up their on-line form disclosing their marks obtained in their High School, Intermediate, Graduation and other educational qualification. Based on the marks obtained by such candidates in terms of the provisions contained in the Appendix appended to U.P. Basic Education (Teachers) Service Rules, 1981, quality point marks of all the candidates are computed and based on such quality point marks the appointments are offered depending on the availability of number of vacancies. The Appendix of the aforesaid Service Rules, 1981 is referable to Rule 14 (3) of the Rules, according to which for the purposes of calculating the quality point marks for selection of a candidate, percentage of marks obtained by the candidates in his/her High School, Intermediate, Graduation Degree and Bachelor of Education/B.Ed etc. are to be divided by 10 and then they are added. Thus, the formula for computing the quality point marks can be found in the statutory rules according to which percentage of marks obtained by the candidate in each examination is to be divided by 10 and then same are added. Apart from the quality point marks obtained by the candidate in terms of the Appendix appended to the service rules, the marks obtained by a candidate in written examination, which is known as Assistant Teacher Recruitment Examination, are also taken into account for the purposes of preparing the final merit list. Based on such merit, appointments are offered and process of recruitment is thus concluded.
In the instant case, the petitioner being fully eligible in terms of the requirement as per Service Rules as also in terms of the Government Order dated 01.12.2018 made on-line application seeking appointment against the post of Assistant Teacher. The respondent-petitioner also appeared in the written examination held on 06.01.2019. The petitioner secured 91 marks in this written examination and based on her total marks which were computed by taking into account the quality point marks and the marks of the written examination, the respondent-petitioner stood selected for the post in question when the result was declared and her name was mentioned at serial no.35676. Accordingly, the respondent-petitioner was allocated Maharajganj District.
The quality point marks calculated in terms of the marks obtained by the petitioner in her educational qualification examinations were 68.32%. However, when she appeared for councelling which was held on 04.12.2020 she was denied appointment. Such an action on the part of the appellants-State authorities impelled the petitioner to file Writ Petition No.3723 (S/S) of 2021 before this Court. The Court considering the case of the rival parties, finally decided the aforesaid writ petition by means of the order dated 09.02.2021 with the liberty to the respondent-petitioner to file an application before the Secretary, District Education Board, Prayagraj, who was directed to consider and pass reasoned and speaking order in accordance with the Government Order dated 04.12.2020. The Court while delivering the said judgment dated 09.02.2021 extensively quoted the relevant portion of the Government Order dated 04.12.2020 and accordingly clearly directed the Secretary, Basic Education Board, Prayagraj to consider the claim of the petitioner in the light of what has been provided in the said Government Order.
However, the representation made by the respondent-petitioner pursuant to the said order passed by the Court on 09.02.2021 was rejected by means of the order dated 14.07.2021 which was passed by the Secretary, Basic Education Board. It is this order dated 14.07.2021 that became the subject matter of challenge before the learned Single Judge who while passing the judgment and order under appeal herein allowed the writ petition and quashed the order dated 14.07.2021 with a further direction to the Secretary, Basic Education Board, Prayagraj to consider the candidature of the petitioner-respondent for appointment on the post in question.
Before considering the reasoning given by the learned Single Judge while allowing the writ petition, we may advert to three documents on which great emphasis has been laid by the learned State Counsel while arguing the instant special appeal. The first document referred by the learned State Counsel is the Government Order dated 01.12.2020 whereby the directions were issued to initiate the process of recruitment against 69,000/- vacancies of Assistant Teachers. Along with the said Government Order, detailed guidelines have been enclosed. According to clause 17(3) of the said guidelines, the candidates were not to be provided any opportunity to rectify the mistake in their on-line application form and accordingly it is provided therein that the candidate should compare the entries made by them in the application form with the original documents before finally submitting/finally saving the same. Sub clause 4 of clause 17 of the said guidelines also provides that immediately before finally submitting/finally saving on-line application, the candidate has to make a declaration that he/she has taken out print out of the entries made in the application form and has also compared the same with the entries in the original documents and further that the candidate consents that once the application form is finally saved, he/she will have no opportunity to make any rectification in the application form. Learned State Counsel has also referred to sub clause 6 of clause 17 of the said guidelines, according to which no request for making any rectification in the application form shall be entertained after the application form is finally submitted/finally saved on-line. It also provides that examination conducting body will not be responsible for any such mistake in the form.
The Government Order dated 04.12.2020 has also been referred to by the learned State Counsel. Referring to sub clause 3 point no.2, it has been submitted on behalf of the appellants-State authorities that in case any candidate has furnished wrong information about the marks in his/her educational qualification, the same would lead to change in the merit of the candidate which will ultimately lead to alteration in the final select list and accordingly in the light of this it will not be justified to permit any change in the select list/merit list and accordingly in a case where a candidate fails to give correct disclosure of marks, he/she shall make himself/herself liable for cancellation of his/her candidature. Reference has also been made to the Government Order dated 05.03.2021. Learned State Counsel has referred to sub clause 1 of clause 2 of the said Government Order and has stated that it provides that in case any candidate gives incorrect information about the marks obtained/total marks in the education qualification examinations his/her candidature shall be cancelled. Based on the aforesaid guidelines/Government Orders, it has thus, been argued by the learned State Counsel that on account of error relating to total marks and marks obtained by the respondent-petitioner in her high school examination her candidature was liable to be cancelled and accordingly her candidate has rightly been rejected and she has rightly been denied appointment.
We will now weigh the submissions made by the learned State Counsel. As observed above, so far as the facts of this case are concerned, there is no dispute between the parties. The error which had crept in the application form of the respondent-petitioner is to the effect that in her on-line application form in column relating to educational qualification against the high school examination she indicated 600 as total marks and 536 as the marks obtained by her, whereas in fact the total marks in her high school examination conducted by C.B.S.E. were 500 and the marks obtained by her were 446.5. Thus, the allegation is that in stead of indicating 446.5/500 as her marks in her high school examination she indicated 536/600. The State Counsel has thus submitted that because of this error/mistake in the marks in her high school examination as furnished by her in the application form, the respondent-petitioner committed a mistake and according to the Government Orders dated 05.03.2021, 04.12.2020 and the guidelines issued along with the Government Order dated 01.12.2018 her candidature has rightly been rejected.
The case set up by the respondent-petitioner is that she had passed her high school examination conducted by Central Board of Secondary Education (hereinafter referred to as 'C.B.S.E.') where the marks-sheet does not disclose either marks obtained or the total marks in numerals; rather the marks-sheet discloses grades based on the system known as CGPA (Cumulative Grade Point Average). It is the case of the respondent-petitioner that she converted the grade awarded to her by the C.B.S.E. in her high school examination into percentage of the marks which is 89.3%, however, instead of indicating the marks obtained by her out of total marks of 500 she indicated her marks out of total marks 600 and the said error had crept in the application form for the reason that the Board of High School and Intermediate Education U.P. awards marks to the high school examinees out of total marks of 600, whereas C.B.S.E. awards the marks to its candidate out of total marks of 500. It is also the case of the respondent-petitioner that the high school marks-sheet issued by the C.B.S.E. neither contains any description of the total marks nor does it contain any description about the marks obtained by the candidate in numerals. Our attention has been drawn to point no.13 contained in the Government Order dated 04.12.2020 according to which it was decided by the appellants-State authorities that where quality point marks are to be calculated on the basis of CGPA, the same shall be done in terms of the formula/guidelines issued by the Board/University concerned. Calculation of quality point marks of a candidate is to be done by the State authorities in terms of the said provision contained in point no.13 of the Government Order dated 04.12.2020.
We have carefully perused the guidelines contained in the Government Orders dated 01.12.2018, 04.12.2020 and the Government Order dated 05.03.2021, however, we do not find any clarity as to how details of the marks obtained and the total marks by a candidate in case he/she passed his/her high school examination from a Board or University where marks-sheet are issued on the basis of CGPA system, are to be disclosed while filling the application form on-line.
Admittedly, the petitioner passed her high school examination conducted by C.B.S.E. where marks-sheet indicates only the grade based on C.G.P.A. system. Thus the respondent-petitioner calculated the percentage of marks in terms of the formula evolved by the C.B.S.E. and found to have secured 89.3%. There is no dispute by the appellants-State authorities that the respondent-petitioner in her high school examination had secured 89.3% marks. It is only that instead of writing 446.3/500 she indicated 536/600 in her application form against the column of marks obtained/total marks in High School. The details thus furnished by the respondent-petitioner in respect of the high school examination in her on-line application form does not in any manner have any impact on calculation of quality point marks which may disturb her merit which is based on quality point marks and the written examination. As indicated above, in terms of the appendix appended to the Service Rules, the quality point marks are to be calculated based on the percentage of the marks obtained in each educational qualification examination which is divided by 10. The percentage of marks in this case obtained by the respondent-petitioner is not being disputed which is 89.3%. Thus, from these facts, it is apparent and explicit that by indicating 536/600 in place of 446.3/500 the respondent-petitioner did not make any attempt to put herself in any advantaged situation. The manner in which she furnished these details may be attributed to absence of any clear guidelines for indicating marks in the educational qualification examination where marks-sheets are issued indicating therein grades based on C.G.P.A. system.
In our opinion, when we examine the Government Orders dated 05.03.2021 and 04.12.2020 what we find is that the said Government Orders have been issued with a purpose. The purpose, in our view, is that no candidate should be permitted to rectify any mistake committed by him/her while filling up online application form so as to avoid have ultimate impact on smooth conduct of the selection process and to avoid any alternation or change in the inter se merit of the candidates which would lead to any alternation/change in the final merit/select list. If a candidate furnishes some information in his/her online application form which, as is a present case, does not put him/her in any advantaged situation, in our considered opinion, such effors are not liable to be treated as the basis for rejecting the candidature of such a candidate.
In a case where a candidate indicates more marks than he/she has actually obtained, he/she puts himself/herself in an advantaged position. Similarly in a case where a candidate indicates less marks then total marks prescribed in an examination conducted by the Examining Body then in this situation as well the candidate puts himself/herself in an advantaged position. In both these situations, if the application form contains such mistake, it will not only impede the smooth selection process but such mistake will have the potential of altering or changing the inter se merit of the candidates as also the entire final merit/select list.
In our opinion, the guidelines issued by means of the Government Order dated 01.12.2018 and the provisions contained in the Government Orders dated 05.03.2021 and 04.12.2020 are meant to check and prevent any such situation where the selection process gets impeded or such mistake has the potential of altering inter-se merit of the candidate as also the final list/select list. The judgment rendered by Hon'ble Supreme Court in the case of Rahul Kumar (supra) is very relevant to be referred to at this juncture itself. Hon'ble Supreme Court in the said case of Rahul Kumar (supra) has clearly considered point no.2 of the Government Order dated 04.12.2020. The reference of the said Government Order has been made in para 3 of the said judgment which is extracted herein below:
" Government Order dated 04.12.2020 (the G.O., for short) dealt with as many as 21 points of discrepancies which could possibly have crept in while filling up online application forms by the candidates. Point No.2 of said G.O. is of some relevance and is being quoted hereunder for facility.
Point No.2: Discrepancy in the Marks obtained and Total marks of High School, Intermediate, Graduation, Training and to the total marks and marks obtained received from the excel sheet of the candidate. In relation to the above type of discrepancies following action to be taken has been decided."
Their Lordships of Hon'ble Supreme Court have clearly interpreted the said provision contained in point no.2 of the Government Order dated 04.12.2020 in para 7 of the said judgment which is also extracted hereunder;
"We need not consider individual fact situation as the reading of the G.O. and the Circular as stated above is quite clear that wherever a candidate had put himself in a disadvantaged oposition as stated above, his candidature shall not be cancelled but will be reckoned with such disadvantage as projected; but if the candidate had projected an advantaged position which was beyond his rightful due or entitlement, his candidature will stand cancelled. The rigour of the G.O. and the Circular is clear that wherever undue advantage can ensure to the candidate if the discrepancy were to go unnoticed, regardless whether the percentage of advantage was greater or lesser, the candidature of such candidate must stand cancelled. However, wherever the candidate was not claiming any advantage and as a matter of fact, had put himself in a disadvantaged position, his candidature will not stand cancelled but the candidate will have to remain satisfied with what was quoted or projected in the application form."
From the aforequoted portion of the judgment in the case of Rahul Kumar (supra) rendered by Hon'ble Supreme Court, it is abundantly manifest that rigor of the Government Order is clear according to which whenever any undue advantage ensues to the candidate on account of the discrepancy committed by him/her while filling up online application form, then the candidature of such a candidate must be cancelled. However, if by the discrepancy committed while filling up online application form the candidate concerned puts herself in a disadvantaged situation his/her candidature need not be cancelled but such a candidature will be reckoned with such disadvantage as projected in the application form.
In the present case, the facts as discussed above, which are not in dispute, clearly establish that on account of error while indicating the high school marks in her online application form due to inadvertent mistake, the respondent-petitioner neither put herself in disadvantaged position nor in an advantaged position. The percentage of the marks of the respondent-petitioner in her high school examination is 89.3% and it is this percentage which was taken into account by the appellants-State authorities while reckoning the quality point marks. In such a situation it cannot be said by any stretch of imagination that by mistakenly indicating the High School marks in her on-line application form the respondent-petitioner put herself in any advantaged position so as to make her candidature liable for cancellation.
We have already observed that the Government Orders dated 05.03.2021 and 04.12.2020 as also the guidelines contained in the Government Order dated 01.12.2018 are to be given effect to. However, any mindless application of the provisions contained in the said Government Orders has the potential of denying rightful claim of a deserving candidate who not only qualified in the written examination but also was ultimately selected in the final select list. The validity of the Government Order dated 05.03.2021 has already been upheld by this Court in the case of Jyoti Yadav and another (supra) but so far as its application is concerned, Hon'ble Supreme Court in the case of Rahul Kumar (supra) has made it absolute clear that the candidature of a candidate is liable to be cancelled only in case such a candidate puts himself/herself in an advantaged position by committing some mistake while submitting the on-line application form.
In the light of the discussions made and for the reasons given above, this Court finds itself in agreement with the conclusion drawn by the learned Single Judge and hence any interference in the judgement and order under appeal herein will be unwarranted.
The Special Appeal, thus, lacks merit which is hereby dismissed.
However, there will be no order as to costs.
Order Date :- 8.3.2022 akhilesh/