Rahul Mishra vs State Of U.P. Thru. Prin. Secy. ...
2021 Latest Caselaw 6894 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

?Court No. - 18
 

 
Case :- SERVICE SINGLE No. - 13445 of 2021
 

 
Petitioner :- Rahul Mishra
 
Respondent :- State Of U.P. Thru. Prin. Secy. Basic Edu. & Others
 
Counsel for Petitioner :- Sharad Nandan Ojha,Akhand Pratap Singh
 
Counsel for Respondent :- C.S.C.,Prashant Arora,Ran Vijay Singh,Sarvesh Kumar Dubey
 

 
Hon'ble Jaspreet Singh,J.

The Court has convened through video conferencing.

Heard Shri Sharad Nandan Ojha, learned counsel for the petitioner, Shri Ran Vijay Singh, learned Additional Chief Standing Counsel for the State-respondents as well as on behalf of the Secretary B.S.A., Uttar Pradesh, Prayagraj, Shri Prashant Arora, learned counsel for the respondent No.5 and Shri Sarvesh Kumar Dubey, learned counsel for the respondent No.2.

By means of the instant petition, the petitioner challenges the inaction on the part of the respondents in not issuing the appointment letter to the petitioner despite participating in the counseling and having more percentile (69.41) than the state level cut off mark (67.11) in second phase for the post of Assistant Teachers in Basic Schools of State of Uttar Pradesh in pursuance of the Assistant Teacher Recruitment Examination, 2019.

The submission of the learned counsel for the petitioner is that the State Government on 01.11.2018 had issued an order formulating guidelines for conducting the examination of Assistant Teacher Recruitment Examination, 2019 in respect of Basic Schools of Uttar Pradesh. The petitioner being eligible and qualified for the aforesaid posts applied online for registration on 11.12.2018 and also deposited the necessary requisite fee. It is the case of the petitioner that he had passed High School Examination from the U.P. Board with 45.83% marks in the year 1998 and thereafter passed the Intermediate with 49.80% marks from U.P. Board. The petitioner has also completed his graduation in the streams of Arts from Dr. Ram Manohar Lohiya Avadh University, Faizabad in the year 2005 and consequently cleared B.Ed. Examination from Mahatma Gandhi Kashi Vidyapith, Varanasi in the year 2011, also qualified T.E.T. Examination in the year 2018.

It is also submitted by the petitioner that after having graduated from Dr. Ram Manohar Lohiya Avadh University, Faizabad in the year 2005, the petitioner also enrolled himself as a student of Bachelor Degree in a single subject from U.P. Rajarshi Tandon Open University, Prayagraj and successfully completed two years degree course in single subject i.e. Political Science in the year 2013.

The further submission of the learned counsel for the petitioner is that after verification and scrutiny of the application form, the petitioner was issued an admit card and he appeared in the Examination held on 06.01.2019. The State Government on 07.01.2018 announced the cut off marks. According to which, the general candidates who have appeared in the written examination has to get at least 65% marks i.e. 97 out of 150 and for the reserved category, any candidate, who received 60% marks i.e. 90 marks out of 150, were shortlisted. In the meantime, there was a litigation in respect of the aforesaid examination which went upto the Apex Court, however, despite the same, the results were declared on 12.05.2020. The petitioner had got 122 out of 150 i.e. 81.33% and as already submitted above that the cut off marks of general candidates i.e. 65%, thus, the petitioner was declared successful. The petitioner thereafter was subjected to the second phase of recruitment and in terms of the second counselling, the petitioner is alleged to have got 69.41% which was more than the cut off marks for the state level for the general category. In the aforesaid backdrop, the petitioner was expecting an appointment letter would be issued, however, the same was not issued to the petitioner.

It is also urged that in pursuance of the detailed programme issued by the District Basic Education Officer, District Amethi, the petitioner appeared in counselling on 03.12.2020 before the District Selection Committee and submitted all his testimonials, which were required by the respondents in counselling. It is further submitted that the petitioner was informed orally that apart from the degree of B.A. obtained by the petitioner from Dr. Ram Manohar Lohiya Avadh University, Faizabad in the year 2005, he entered the marks of single subject due to which the appointment letter has not been issued to the petitioner. The petitioner also made a representation on 07.12.2020 and it is further submitted that since no action was taken, the petitioner also sent a reminder. The petitioner once again sent a detailed representation dated 29.12.2020, however, no response was given. It is in the aforesaid backdrop, it is submitted that the petitioner in terms of the marks obtained in terms of the Scheme for the Recruitment Examination 2019 has procured 69.41 percentile while the cut off marks for the District Amethi was 69.09% and cut off marks for the State was 68.95.

It is urged that since the petitioner qualifies, there is no reason why the appointment letter should not be issued to the petitioner despite having made representations, no decision has been taken, hence, the writ petition in the nature of mandamus and it has been prayed that a direction should be issued to the respondents to issue an appointment letter to the petitioner.

The submissions of the learned counsel for the petitioner are vehemently opposed by Shri Prashant Arora, learned counsel appearing for the respondent no.5 and Shri Ran Vijay Singh, learned Additional Chief Standing Counsel for the State-respondents and the respondent No.4.

At the very outset, it has been submitted by Shri Ran Vijay Singh that the State Government had issued a Government Order dated 05.03.2021 in terms whereof it was provided that in case if any incorrect entries have been mentioned in the examination form, the candidature of such candidates will be cancelled. It has been urged that where a candidate without any documentary basis has mentioned more marks than what he has obtained or has mentioned more marks than what was the actual his/her selection shall be cancelled.

It is also submitted that the aforesaid Government order was assailed before the Apex Court in Writ Petition (Civil) No.322 of 2021 - Jyoti Yadav & Anr. v. The State of Uttar Pradesh & Ors., wherein the Apex Court by means of its judgment dated 08.04.2021 dismissed the writ petition and upheld the Government Order dated 05.03.2021.

The submission of the learned Additional Chief Standing Counsel is that in the case of the petitioner the form that he had filled, a copy of which has been brought on record at Page No.110 of the paper-book. He has indicated the marks obtained in his graduation as 1234. The petitioner has indicated in the said form that he has graduated in the year 2005 from Dr. Ram Manohar Lohiya Avadh University, Faizabad and from maximum marks of 2400, the petitioner has obtained 1234 marks.

The learned Additional Chief Standing Counsel further submits that from the perusal of the mark-sheet, a copy of which has been brought on record at Page No.85 of the paper-book, the total number of 844 marks and not 1234 marks was secured by the petitioner but in the form higher marks of 1234 was mentioned. Thus, in terms of the Government Order dated 05.03.2021, there was no option but to cancel the candidature of the petitioner.

It has been urged that the petitioner has indicated in the form that he had graduated from Dr. Ram Manohar Lohiya Avadh University, Faizabad in the year 2005 and in the aforesaid form, there is no mention regarding the fact that he has also graduated in the year 2013 with a single subject from U.P. Rajarshi Tandon Open University, Prayagraj, yet the marks of the graduation in single subject cleared by the petitioner in the year 2013 has also been added. This is apparently incorrect and is hit by the Government Order dated 05.03.2021, hence, the candidature of the petitioner has rightly been rejected.

Shri Ran Vijay Singh, learned Additional Chief Standing Counsel has also referred to the observations made by a Division Bench of this Court in Special Appeal No.834 of 2013 - Ram Manohar Yadav vs. State of U.P. And 3 Ors., decided on 30.05.2013. The relevant portion thereof read as under:-

"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."

Learned counsel for the respondent No.5, Shri Prashant Arora has submitted that insofar as the representation of the petitioner is concerned, the same was considered by the District Selection Committee and by means of the order dated 12.03.2021, the same was also rejected. In view of the aforesaid, it has been urged that the petitioner's case cannot be considered as no mandamus can be issued, accordingly, the writ petition is liable to be dismissed.

Learned counsel for the petitioner in rejoinder has submitted that the alleged order dated 12.03.2021 by means of which it is stated that the representation of the petitioner has been rejected order has not been served on the petitioner. Moreover, had the said rejection been passed, there was no occasion for the District Basic Education Officer to issue a letter to the petitioner dated 08.04.2021 calling upon the petitioner to appear before him on 05.05.2021 for personal hearing. It is also submitted by Shri Ojha that the petitioner has graduated from Dr. Ram Manohar Lohiya Avadh University, Faizabad in the year 2005 in three subjects and later in the year 2013, the petitioner graduated in a single subject from U.P. Rajarshi Tandon Open University, Prayagraj.

Learned counsel for the petitioner has also relied upon a notification of the University Grants Commission to indicate that the degree obtained in a single subject is also valid and can be considered for the purpose of admission in higher courses and employment.

On the strength of the aforesaid, it is urged by Shri Ojah that the petitioner could have been marked as his best three subjects and that should have been taken. It is further submitted that even if the petitioner is marked on the best three subjects, he would still qualify and his cut off percentile is higher than the State cut off marks as well as to cut off marks for the District Amethi, hence, for the aforesaid reasons, the petition deserves to be entertained and allowed.

The Court has considered the rival submissions and perused the record.

The only issue to be considered at this stage is whether the cancellation of the petitioner's candidature was right or not. It is not disputed by the petitioner that he had qualified and graduated from Dr. Ram Manohar Lohiya Avadh University, Faizabad in the year 2005. It is also not disputed by him that while he filled the form for the Recruitment Examination, 2019, he had clearly indicated that he had graduated in the year 2005 from Dr. Ram Manohar Lohiya Avadh University, Faizabad scoring 1234 marks.

Apparently, the Government Order dated 05.03.2021 had been issued by the State Government and the same was challenged before the Apex Court in the case of Jyoti Yadav & Anr. (supra). The Apex Court while considering and testing the Government Order dated 05.03.2021 also noticed that the petitioners before the Apex Court had committed various errors in filling up the marks obtained by them in various examinations. The decision taken by the State Government in its Memorandum dated 05.03.2021 has also been noticed. The relevant portion as contained in the Government Order dated 05.03.2021 has been reproduced in the aforesaid report which reads as under:-

"(1) In context of Recommendations of the Committee at Point-1 in reference to more marks mentioned: -

The candidates who had submitted the application form on the basis of certificate/marksheet available with them and had mentioned more marks but the marks were subsequently changed after scrutiny/re-evaluation/back-paper by the university/issuing authority on its own, those candidates cannot be held to be responsible for changing or wrongfully mentioning marks in the application form as they did not have any option but to fill the marks mentioned in the certificate/marksheet available with them at the relevant time of filling-up of the application form. Such candidates, if they have obtained more quality points than the last candidate selected in the category in the district, then he/she shall be given the appointment letter in that district. If any such candidate has lesser quality points than the last candidate selected in a particular district but more than the quality point than the last selected candidate in that category in the state list then the details of such candidate shall be provided to the administration by the Director, Basic Education. Further actions will be taken in that regard by the administration.

Where a candidate, without any documentary basis, has mentioned more marks than what he has obtained or has mentioned more maximum marks than what the actual was, his/her selection/candidature shall be cancelled."

It is in the aforesaid backdrop that an apprehension was raised before the Apex Court that the petitioners, who have filled up more marks than actual marks, their forms would be rejected in terms of the Government Order dated 05.03.2021. The State had also raised a specific plea that in case if each one of the petitioner before the Apex Court is given chance to keep correcting the errors than the same would affect the entire selection process and would also affect the merit-list.

Having considered the rival submissions, the Apex Court in the case of Jyoti Yadav & Anr. (supra) in Paragraphs-15 to 17 has held as under:-

"15. Having considered all the rival submissions, in our view, the Communication dated 05.03.2021 made a rational distinction and was designed to achieve a purpose of securing fairness while maintaining the integrity of the entire process. If, at every juncture, any mistakes by the candidates were to be addressed and considered at individual level, the entire process of selection may stand delayed and put to prejudice. In order to have definiteness in the matter, certain norms had to be prescribed and prescription of such stipulations cannot be termed to be arbitrary or irrational. Every candidate was put to notice twice over, by the Guidelines and the Advertisement.

16. Having found the Communication dated 05.03.2021 to be correct, the cases of the petitioners must be held to be governed fully by the rigors of the said Communication.

17. We, therefore, see no reason to interfere in these petitions and no opportunity beyond the confines of the Communication dated 05.03.2021 can be afforded to the petitioners to rectify the mistakes committed by them. We, therefore, reject the submissions and dismiss all these petitions."

Thus, it would be seen that the Government Order dated 05.03.2021 has been upheld by the Apex Court which specifically relates to the situation where a candidate, who has filled more marks than obtained, would be covered by the Government Order dated 05.03.2021.

In the instant case also, it could not be disputed by Shri Ojha, learned counsel for the petitioner that in the form, the petitioner had filled up 1234 marks whereas he obtained 844 marks. Thus, he having filled up more marks in the application form which he is not permitted to correct in terms of the Government Order dated 05.03.2021 his candidature was liable to be rejected. Once the aforesaid position is admitted and the candidature of the petitioner having been rejected on 12.03.2021 no fault can be found in respect thereto.

In view of the aforesaid, this Court is not inclined to entertain the aforesaid petition nor a mandamus can be issued in the aforesaid facts and circumstances. Shri Prashant Arora, learned counsel for the respondent No.5 is directed to serve a copy of the cancellation order dated 12.03.2021 to the learned counsel for the petitioner with 48 hours.

With the aforesaid, the writ petition being misconceived and is accordingly dismissed at the admission stage.

The party shall file computer generated copy of order downloaded from the official website of High Court Allahabad, self attested by it alongwith a self attested identity proof of the said person (s) (preferably Aadhar Card) mentioning the mobile number (s) to which the said Aadhar Card is linked.

The concerned Court/Authority/Official shall verify the authenticity of the computerized copy of the order from the official website of High Court Allahabad and shall make a declaration of such verification in writing.

Order Date :- 1.7.2021

Rakesh/-