Allahabad High Court
Ashutosh Kumar Srivastava And 60 Others vs State Of U.P. And 2 Others on 30 May, 2020
Equivalent citations: AIRONLINE 2020 ALL 1443
Author: Prakash Padia
Bench: Prakash Padia
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. In Chamber Case :- WRIT - A No. - 4070 of 2020 Petitioner :- Ashutosh Kumar Srivastava And 60 Others Respondent :- State Of U.P. And 2 Others Counsel for Petitioner :- Seemant Singh,Pankaj Kumar Ojha Counsel for Respondent :- C.S.C. Hon'ble Prakash Padia,J.
1. During lockdown period keeping in view the (COVID-19) pandemic, this case has been listed today in my chamber under the order of Hon'ble the Chief Justice.
2. Heard Sri Seemant Singh, learned counsel for the petitioner and Sri M. C. Chaturvedi, learned Additional Advocate General/learned Senior Counsel assisted by Sri Suresh Singh, learned Additional Chief Standing Counsel and Sri Rajesh Kumar Mishra, and Sri Vijay Shanker Mishra, learned Standing Counsel for the State and Sri P. D. Tripathi, learned counsel for the respondent-Basic Education Board through Video Conferencing.
3. The petitioner has preferred the present writ petition inter-alia with the following prayer-
"(a) Issue a writ, order or direction in the nature of Mandamus directing the respondents to accord an opportunity to rectify the incorrect entries made by the petitioners in their online application forms of Assistant Teacher Recruitment Examination 2019 submitted before the Secretary, Examination Regulatory Authority, U.P. Prayagraj relating to the details of different education qualifications.
(b) Issue a writ, order or direction in the nature of Mandamus directing the respondents to consider the petitioners on the basis of their original educational testimonials in the instant selection of 69000 posts of Assistant Teacher to be appointed in different Primary Schools of different districts of the State of Uttar Pradesh initiated vide Government Order dated 01.12.2018 issued by the Additional Chief Secretary, Government of U.P., Lucknow."
4. The facts in brief as narrated in the writ petition are that the petitioners applied for Assistant Teacher Recruitment Examination-2019. The petitioners duly appeared in the examination on 06.01.2019 and the result was declared on 12.05.2020 in which all the petitioners have been declared qualified having obtained the qualifying marks prescribed by the respondents. The petitioners have committed some human errors with regard to filling of their B.Ed marks inclusive of B.Ed. Theory and Practical, with regard to filling of B.Ed Roll Numbers, with regard to filling of marks of Graduation, High School and Intermediate and with regard to filling of marks relating to 2 year B.T.C. Training Course.
5. Learned counsel for the petitioners argued that the aforesaid human errors crept in the online application forms of the petitioners submitted by them online at the official website of the respondents. It is further argued that the mistakes committed by the petitioners are only human error. It is further argued that the direction be given to the concerned authority to decide the representation made by the petitioners as has been done in several cases by the different Coordinate Benches of this Court.
6. In paragraph 6 of the writ petition, it is contended that the petitioners no.1 to 45 are having the qualification of B.Ed, petitioners no.46 to 60 are having the qualification of two years B.T.C. Training Course and petitioner no.61 is having a qualification of D.Ed. and as such all the petitioners are fully eligible to apply for the examination in question. It is further stated in the writ petition that in the notification dated 12.5.2020 all the petitioners were declared qualified having obtained the qualifying marks in their respective category. The applicants, who have been declared qualified in the examination are eligible to apply further online application forms for the appointment on the post of Assistant Teachers to be appointed in different primary schools of different districts in the state of U.P. It is further stated in the writ petition that while submitting the online application forms for appointment on the post of Assistant Teacher, the petitioners will be required to mention their marks of the examination in question and the preference of district but the petitioners cannot make any change or correction with regard to the alleged incorrect entries made by them with regard to their educational testimonies.
7. Learned counsel for the petitioners also relied upon the two judgements delivered by two different Coordinate Benches of this Court in the following cases :-
(i) Writ Petition No.21117 of 2018 (Satyendra Kumar Shukla Vs. State of U.P. and others.)
(ii) Writ Petition No.19162 of 2018 (Sachin Sharma and others Vs. State of U.P. and others).
Apart from the same, learned counsel for the petitioners also relied upon a Division Bench judgement of this Court in Special Appeal No.2312 of 2011 (Km. Archana Rastogi Vs. State of U.P. and others) reported in 2012 (3) ADJ 219 decided on 13.1.2012.
8. In view of the same it is contented by learned counsel for the petitioners that once any mistake has committed by the petitioners, the same should be rectified. In this regard the petitioners have also submitted representations to the Basic Education Board Prayagraj on 08.05.2020, 12.5.2020 and 17.3.2010. Copies of the said Representative are appended collectively as Annexure-7 to the writ petition.
9. From perusal of the facts as narrated above it appears that all the petitioners committed mistake while filling up their application forms. The basic mistakes were committed in respect of the marks adjudicated to them pertaining to B.Ed Examination, (Practical as well as Theory).
10. It further appears from perusal of the chart appended along-with the writ petition (Annexure 5 to the writ petition) that the petitioner no.1, Ashutosh Kumar Srivastava obtained 582 marks out of 1000 in respect of his B.Ed Examination but in the application form it is stated by him that out of total 400 marks he obtained 250 marks. It further appears from perusal of the chart that the petitioner no.2, Ajendra Singh obtained 682 marks out of 1115 in theory and 494 marks out of 635 in practical pertaining to his B.Ed examination but in the application form it is mentioned by him that he obtained 759 marks out of 1215 in respect of theory and 418 marks out of 535 in respect of practical examination. Almost the similar mistakes were committed by all the petitioners.
11. From perusal of the record, the Court is of the opinion that the aforesaid mistakes are not a kind of human error but deliberately and willfully mistakes were committed by the petitioners while filling up their application forms.
12. This issue has also been examined in Special Appeal Defective No.117 of 2014 ( Km. Richa Pandey v. Examination Regulatory Authority and Another) decided on 18.02.2014. The relevant observation is as follows:-
"The OMR sheets are provided to the candidates to speed up evaluation through help of computer. In case we accept the argument of learned counsel for the petitioner that the language in which the petitioner had written essay could be checked up by the examiner before feeding answer book into computer, the entire process of expediting the results will be lost. Where OMR sheets are to be examined with aid of the computer, it is not advisable and practical to direct that each OMR sheet should be checked by the examiners and the columns, which have not been filled up may be filled up by the examiner himself with the aid of the language used by the candidates for writing essay. We are informed by Standing Counsel that about seven lacs candidates had appeared in the test.
With such large number of candidates appearing in TET Examination 2013 it would not have been possible nor it was feasible for examiners to look into the answer sheets individually before feeding them into computer for correcting any mistakes.
We agree with the reasoning given by the learned Single Judge that where the applicant is not capable of correctly filling up the form, she is not entitled to any discretionary relief from the Court.
The special appeal is dismissed."
13. In Special Appeal No.834 of 2013 (Ram Manohar Yadav v. State of U.P. and 3 Ors.) decided on 30.05.2013, the Division Bench of this Court observed as follows:-
"We are not inclined to interfere in this special appeal because interference in such matters would result in thoroughly incompetent or utterly negligent persons becoming teachers and spoiling the future of the children whom they will teach.
If prospective teacher can not even correctly fill up the simple on line application form for his employment, it is obvious what he is going to teach if appointed. There are certain decisions cited on this issue. But none of them deal with this aspect whether under the discretionary jurisdiction of the Court under Article 226 of the Constitution of India such incompetent persons should be allowed to play with the future of the next generation.
Therefore, we are of the opinion that the petitioner/appellant should wait till he attains sufficient maturity and learns to be more careful in filling up the applications for jobs. The appeal is therefore, dismissed."
14. In Special Appeal Defective No.123 of 2014 (Arti Verma v. State of U.P. and 2 Ors.), a Division Bench of this Court observed that:-
"The appellant made an on-line application for engagement as Shiksha Anudeshak (Arts) for 2012-13 on a contract basis. In the application, the appellant claimed to have belonged to the Freedom Fighters' category, which was admittedly not the category to which the appellant could have claimed. The name of the appellant was shown in the select list of candidates belonging to the Freedom Fighters' Category. The Secretary to the State Government rejected the representation filed by the appellant for correcting the error in the on line application. The learned Single Judge dismissed the petition filed by the appellant under Article 226 of the Constitution for setting aside the order passed by the Secretary noting that under the declaration given by the appellant while filling up the application, it was stated that the candidature could be rejected if any discrepancy was found. The learned Single Judge has also relied upon a judgment of the Division Bench rendered in Ram Manohar Yadav Vs. State of U.P. & three Ors., (Special Appeal-834 of 2013).
In the judgment of the Division Bench in Ram Manohar Yadav (supra) it was observed that where an applicant has shown his incompetence or negligence in not not even correctly filling up a simple on line application form for employment, interference of the High Court under Article 226 of the Constitution was not warranted.
However, learned counsel appearing on behalf of the appellant relied upon a judgment of a Division Bench in Puspraj Singh Vs. State of U.P. & Ors., (Special Appeal-75 of 2013). That is a case where the appellant had wrongly described himself as a female candidate. On these facts, the Division Bench accepted the contention that human error had caused an incorrect on line entry, since there was no reason for the appellant to make such a declaration and that he did not stand to gain anything by making such an incorrect entry.
In the present case, the appellant claimed the benefit of Freedom Fighters category. The contention that this was as a result of an error committed by the Computer Operator cannot simply be accepted for the reason that the appellant would necessarily be responsible for any statement which he made on line. If the Courts were to accept such a plea of the appellant, that would result in a situation where the appellant would get the benefit of a wrong category if the wrong claim went unnoticed and if noticed, the appellant could always turn around and claim that this was as a result of human error. Each candidate necessarily must bear the consequences of his failure to fill up the application form correctly. No fault can, therefore, be found in rejecting the application for correction when the candidate himself has failed to make a proper disclosure or where, as in the present case, the application is submitted under a wrong category. Interference of the High Court under Article 226 of the Constitution is clearly not warranted in such matters as it creates grave uncertainty since the selection process cannot be finally completed. Moreover, in the present case, the appointment was of a contractual nature for a period of eleven months. Hence, considering the matter from any perspective, the learned Single Judge was not in error in dismissing the petition under Article 226 of the Constitution.
The Special Appeal is, accordingly, dismissed."
15. This Court cannot permit another window of argument as an alternative one to grant an appropriate relief of alternative remedy of representation prayed for. Even otherwise this Court has already taken view in Writ - A No. 841 of 2018 (Kanchan Bala & 172 Ors v. State of U.P. & 4 Ors) thus:-
"23. The Court has proceeded to examine the record in question and found that clear instructions were given in the first page of question booklet directing the candidates to correctly fill up the OMR sheet and any error committed by the candidate cannot be corrected by the authority. The petitioners could not successfully mark the circle/bubble on the answer sheet showing correct registration number, roll number, booklet series or language-II attempted. Consequently, the result of the petitioners have been declared as invalid registration number/roll number. After the declaration of the result in question, they have proceeded to make a request that the correction is required. It is too late in the day to make such request by the petitioners, inasmuch as, OMR sheet is examined by the computer on the basis of columns that have been filled up by an incumbent and, in view of this, once final result has been declared and there is no provision to carry out any correction in the OMR sheet, then no relief can be accorded to the petitioners, especially keeping in view the dictum of Division Bench of this Court in Smt. Arti Verma Vs. State of U.P. & others and the judgment of learned Single Judge in Ritu Chauhan's case (supra), wherein once the Division Bench as well as learned Single Judge had already rejected the similar arguments as well as the claim set up by the candidates appeared in the TET-2013, 2016 and 2017, then there is no reason or occasion for this Court to take a different view in the matter.
24. The Court is also conscious that in the garb of minor discrepancy for rectifying such human error in the OMR sheet, the Court cannot give any liberty to the respondent to intervene in the matter at this stage, which would also have very serious consequence for the fairness of entire selection. Coupled with the above, I am clearly of the view that the action taken by the respondent is neither arbitrary nor illegal. In such circumstances, it is not legally permissible to interfere with the decision of the respondent."
16. The said judgment has come to be affirmed in Special Appeal No. 90 of 2018 (Jai Karan Singh And 52 Ors v. State of U.P. And 4 Ors.) in following terms:
"The error committed by the candidates cannot be said to be minor in nature. It is the Registration Number, Roll Number that determines identity of the candidates. The candidates who appeared in the examination were mature students and were to be appointed as Assistant Teachers in institution. They should have read the instructions that was issued time and again and should have correctly filled the entries relating to Roll Number, Registration Number, Question Booklet Series and Language attempted. The entries were, however inaccurately filled as a result of which the scanner has not been able to process the result.
The learned Judge was, therefore, justified in dismissing the writ petitions. The Special Appeal is, accordingly, dismissed."
17. The law in this connection is also well settled by the Supreme Court in the case of Karnataka Public Service Commission and Ors. Vs. B. M. Vijaya Shankar and Ors. reported at AIR 1992 SC 952. The Supreme Court was pleased to hold that the Competitive examinations are required to be conducted by the Commission for public service in strict secrecy to get the best brain. It was held that the instructions contained in the answer-sheet should be complied with in its letter and spirit. The operative portion of the aforesaid judgment is quoted below:-
"Competitive examinations are required to be conducted by the Commission for public service in strict secrecy to get the best brain. Public interest requires no compromise on it. Any violation of it should be visited strictly. Absence of any expectation of hearing in matters which do not affect any interest and call for immediate action, such as the present one, where it would have delayed declaration of list of other candidates which would have been more unfair and unjust are rare but well recognised exceptions to the rule of natural justice. It cannot be equated with where a student is found copying in the examination or an inference arises against him for copying due to similarity in answers of number of other candidates or he is charged with misconduct or misbehavior. Direction not to write roll number was clear and explicit. It was printed on the first page of every answer book. Once it was violated the issue of bonafide and honest mistake did not arise. Its consequences, even, if not provided did not make any difference in law. The action could not be characterised as arbitrary. It was not denial of equal opportunity. The reverse may be true."
18. In so far as the cases cited by the learned counsel for the petitioners are concerned, the same will not help the petitioners since in large number of cases observations were duly made by different Division Benches of this Court that in case any mistake was committed by the candidates during the course of examination, the writ court will not interfere in the matter.
19. In so far as the Division Bench judgement cited by the counsel for the petitioners are concerned, the aforesaid judgement has already been dealt with by another Division Bench of this Court in Special Appeal No. 90 of 2018 (Jai Karan Singh And 52 Ors v. State of U.P. And 4 Ors.). The following observations were made by the Division Bench in the aforesaid case :-
"Likewise, in Archana Rastogi v. State of U.P. and Others reported in 2012 (3) ADJ 219, the appellant had mentioned the marks obtained in the High School as '256' whereas he had actually obtained '356'. It is, in such circumstances, the Court directed marks could be corrected. Here also, there was only one candidate and no process by electronic scanning had been undertaken."
20. The error committed by the candidates cannot be said to be human in nature. The petitioners should have read the instructions that were issued time and again and should have correctly filled the entries relating to the marks obtained by them in their previous examinations. The contention that this was an error committed by the Computer Operator cannot simply be accepted. If the Courts were to accept such a plea of the petitioners, then this would result in a situation where the petitioners would get the benefit of a wrong if the wrong claim went unnoticed and if noticed the petitioners could always turn around and claim that this was a result of a human error. Each candidate necessarily must bear the consequences of his failure to fill up the application form correctly. From perusal of the record, I am of the opinion that the error/errors committed by the petitioners are neither minor nor are human error/errors.
21. In view of the facts as narrated above as well as the law laid down by the differnt Division Bench of this Court from time to time as well as by the Apex Court, no relief could be granted to the petitioners.
22. The writ petition is dismissed.
Order Date :- 30.5.2020 Pramod Tripathi