Surjeet Singh vs State Of U P And 2 Others
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Allahabad High Court

Surjeet Singh vs State Of U P And 2 Others on 30 May, 2024

Author: Piyush Agrawal

Bench: Piyush Agrawal

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


1
 
A.F.R.
 
Neutral Citation No. - 2024:AHC:98705
 
Judgment Reserved on 24.05.2024
 
Judgment Delivered on 30.05.2024
 
Court No. - 36
 
Case :- WRIT - A No. - 17100 of 2022
 
Petitioner :- Surjeet Singh
 
Respondent :- State Of U P And 2 Others
 
Counsel for Petitioner :- Siddharth Khare
 
Counsel for Respondent :- Archana Singh, C.S.C.
 

 
HON'BLE PIYUSH AGRAWAL, J. 

1. Heard Sri Siddharth Khare, learned counsel for the petitioner and Ms. Archana Singh, learned counsel for the respondents.

2. By means of this writ petition, the following prayer has been made:-

"(i) Issue a writ, order or direction in the nature of certiorari and quash the orders dated 14.09.2022 passed by District Basic Education Officer, District Badaun (Annexure No. 15) in interest of justice.

(ii) Issue a suitable order or direction in nature of mandamus and directing to respondents to allow to petitioner for work of the post of Assistant Teacher and pay salary month to month from due date without any interruption in interest of justice according to law.

(iii) ................"

3. Brief facts of the case are that the State Government invited application for filling up 69,000/- post of Assistant Teachers in Primary Schools by publishing advertisement. In pursuance thereof, the petitioner, having requisite qualification, applied for the same. In the said application, he has specifically mentioned the obtained number in academic and training alongwith High School Marks as 324/600. Thereafter, the petitioner appeared in the written examination held on 06.01.2019 and the petitioner has been declared successful by obtaining 64.23 per cent. Further, on 04.12.2020, the appointment letter was issued to the petitioner for the post of Assistant Teacher. In pursuance thereof, petitioner joined his services on 01.02.2021 in the institution allotted to him. Thereafter, some complaint was made against the petitioner and consequent thereof, notice was issued to the petitioner to which the petitioner submitted reply specifically stating therein that in the High School Marks, against the Mathematics, grace mark was given and since the petitioner was not aware as to grace marks that the same will not be added in total score. Thereafter, on 14.09.2022, the services of the petitioner has been terminated. Hence the present petition.

4. Learned counsel for the petitioner has submitted that the petitioner has mentioned the total marks in the application including the grace marks, which is in total 324/600 and if the grace marks i.e. 8 is subtracted, then it comes to 316 out of 600. He further submits that in the selection list, the petitioner has been shown at Serial No. 1673, where the percentage of obtained marks is mentioned as 64.23. He next submits that if the grace marks is reduced, then total percentage comes to 64.093. He further submits that since the person next to the petitioner, who is at Serial No 1674 and whose marks is 63.93 per cent, therefore, the merit list as a whole will not change.

5. In support of his submission, counsel for the petitioner has placed reliance upon two Government Orders dated 04.12.2020 & 05.03.2021. He refers Clauses 2 & 3 of Point No.2 of G.O. dated 04.12.2020 and submits that the intent of Government is very clear that if the aspirants have filled the higher marks than the obtained marks incorrectly, which does not affect the merit list, then the selection of such candidate will not be cancelled. He further refers Clause Nos. 2 to 4 of the Government Order dated 05.03.2021 and submits that the intent of the Government is very clear where the merit list in either of the cases i.e. mentioning the lower numbers or the higher numbers, if the merit is not changed and if the same is changed, after obtaining affidavit, no future claim will be made by the candidate.

6. He next refers Clause 2 (1) of G.O. dated 05.03.2021, which also clarifies the said decision specifically satisfy that where the candidate, if without any basis has mentioned higher marks than obtained marks, the selection of such candidate may be cancelled. He submits that in the case in hand, there is a reason for mentioning higher marks awarded to the petitioner, therefore, the total sum was mentioned as 324 (including eight grace marks) instead of 316. He further submits that this fact is also not clear to the District Basic Education Officer. He further submits that in the advertisement, it was not clear that with which regard, total sum is to be mentioned that is deducting the grace marks. In support of his contention, he refers letter dated 13.07.2021 issued by District Basic Education Officer to higher authority, a copy of which has been annexed as Annexure No.7 , where the BSA has sought guidelines how to deal with the situation where the total sum has been mentioned including grace marks. Counsel for the petitioner further submits that the mistake is bona-fide as the grace marks was included in the total sum on the basis of material on record and not otherwise, which can be ignored in view of the Government Order dated 05.03.2021, therefore, the appointment of the petitioner should not be cancelled.

7. In support of his submission, he further placed reliance upon the judgment of Division Bench of this Court passed in the case of Secy. Basid Edu. Boar, Prayagraj and Others (In Writ-A No.17495 of 2021) Vs. Jubeda Bano (Special Appeal No. 69 of 2022), decided on 08.03.2022 in which the Government Orders dated 04.12.2020 and 05.03.2021 have specifically been considered holding that no grace marks shall be permitted in the OnLine application to avoid any alteration or change in the inter-se merit list of the candidates or to alter/change in the final merit list.

8. Per contra, learned counsel for the respondents submits that the Government order dated 05.03.2021 is absolutely clear, which empowers to the candidates, who has wrongly mentioned the marks OnLine, the appointment can be cancelled. She further submits that the said government order was not only considered by the Division Bench of this Court but also by the Hon'ble Apex Court. He placed reliance upon the recent judgment of the Hon'ble Apex Court passed in the case of Jyoti Yadav and Anr. Vs. The State of Uttar Pradesh & Ors., [Writ Petition (Civil) No. 322 of 2021], decided on 08.04.2021 in which the candidature of the petitioner has been rejected, considering the said G.O. dated 05.03.2021 by holding that the G.O. dated 05.03.2021was designed to achieve a purpose of securing fairness while maintaining the integrity of the entire process. She further placed reliance upon the judgment of Division Bench of this Court passed in Special Appeal No. 153 of 2022 (Secretary Basic Education Board and Another Vs. Pratibha Mishra & Ors.) by submitting that the candidate got one grace mark, which was mentioned by the appellant therein, has turned down the candidature of the appellant therein.

9. She further placed reliance upon the judgment of Special Appeal Defective No. 551 of 2021 (The Basic Education Board U.P. Vs. Manisha Singh and 2 Others), decided on 09.08.2021, where the appellant was not non-suited because of mentioning wrong marks. Similarly, she has relied upon the judgment of this Court passed in the case of Sushil Kumar Vs. State of U.P. and Ors., 2021 (8) ADJ 210, where the Court has taken the view that the grace marks should not have included in the total marks, and therefore, turned down prayer made therein.

10. Counsel for the respondents summarises his submission while submitting that admittedly, the petitioner has secured only 316 marks and not 324 out of 600, therefore, by the impugned order, his appointment has rightly been cancelled.

11. Rebutting to the said submission of the counsel for the respondents, Shri Khare, submits that the judgments cited by the learned counsel for the respondents are not applicable to the facts of the case. He submits that even assuming without admitting the marks have wrongly been mentioned, but if the eight grace marks are reduced, the percentage comes to 64.093 and the candidate, who is just below the petitioner i.e. at Serial No. 1674 has obtained 63.93, therefore, the merit list of the selected candidate will not be changed, this fact has neither been argued in any of the cited judgments by counsel for the respondents nor considered. The petitioner has neither got advantages nor any other candidate was put to disadvantages position.

12. After hearing the parties, the Court has perused the records.

13. It is not in dispute that the petitioner secured 316 marks out of 600 marks and while filling the OnLine application, has mentioned 324 out of 600, by adding eight marks, which was awarded to the petitioner as grace marks in the Mathematics subject.

14. The merit list, which has been brought on record as Annexure No.2 to the present writ petition, wherein the petitioner has been shows at Serial No. 1673 and obtained 64.23. Further, the next person has been shown at Serial No. 1674 who has obtained 63.93 per cent marks. Furthermore, even if eight grace marks are removed, the petitioner's percentage comes to 64.093 and admittedly, even if said percentage i.e. 64.093 is taken to be correct.

15. The petitioner does not gain any advantage as well as in this matter, the candidate who is at Serial No. 1674 is not put to any disadvantage position because she has got 63.93 percentage. In other words, the petitioner does not gain any advantage of mentioning the grace marks and putting the candidate next to him in disadvantage position.

16. The Hon'ble Apex Court as well as Division Bench of this Court has considered the government order dated 05.03.2021 in the above-quoted judgments, in which it has categorically been affirmed that the said government order has been issued so that the process of selection of appointment will not be disturbed. The circular further provides that by any reason, if the marks has wrongly been mentioned, the candidature would be cancelled, but in the case in hand, since eight grace marks have been mentioned by the petitioner though he secured only 316 marks out of 600, and even after deducting eight grace marks, the merit list does not affect as mentioned above as the selected candidate next to the petitioner secured much less percentage i.e. 63.93; whereas after deducting eight grace marks it comes to 64.093, therefore, it can happily be said that the petitioner has not put any candidate at disadvantage position by mentioning eight grace marks along with actual marks.

17. Further, in the judgments cited by the counsel for the respondents, nowhere, it has been considered the aspect of the fact, but by reducing the grace marks, the inter-se merit list was not disturbed. Therefore, the judgments cited by the counsel for the respondents do not do any aid to her in a peculiar facts and circumstances mentioned here-in-above.

18. In view of the facts as stated above, the impugned order dated 14.09.2022 cannot sustain in the eye of law and the same is hereby quashed.

19. The writ petition is allowed, accordingly.

20. A mandamus is issued to the authority concerned to permit the petitioner to discharge his services on the post of Assistant Teacher and salary shall be paid to him month to month forthwith. A mandamus is also issued to authority concerned to give all consequential benefits to the petitioner.

Order Date :-30.05.2024

Pravesh Mishra/-