Andhra Pradesh High Court - Amravati
Potluri Anjali vs The State Of Andhra Pradesh on 28 January, 2022
Bench: Prashant Kumar Mishra, M.Satyanarayana Murthy
IN THE HIGH COURT OF STATE OF ANDHRA PRADESH: AMARAVATI
WRIT APPEAL NO.812 OF 2021
#
W.A.No.812 OF 2021
Potluri Anjali
d/o Hanumantha Rao
r/o Zarugumalli Mandal,
Prakasam District ..... Appellant
Vs.
$
The State of Andhra Pradesh,
Rep. by its Principal Secretary,
School Education (Exams) Department
Secretariat, Velagapudi and 6 others ..Respondents
! Counsel for the petitioner : Mr. P. Nagendra Reddy
^ Counsel for the Respondent Nos. 1 to 5 : Mr. Bhim Rao, learned Government
Pleader for Services - III
Counsel for Respondent Nos. 6 & 7 : Mrs. A. Varalakshmi
JUDGMENT PRONOUNCED ON: 28.01.2022
THE HON'BLE SRI JUSTICE M. SATYANARAYANA MURTHY
1. Whether Reporters of Local newspapers
may be allowed to see the Judgments?
2. Whether the copies of judgment may be marked to
Law Reporters/Journals
3. Whether Their Ladyship/Lordship wish to see the
fair copy of the Judgment?
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2
* HON'BLE MR. JUSTICE PRAHANT KUMAR MISHRA, CHIEF JUSTICE
AND
HON'BLE MR. JUSTICE M. SATYANARAYANA MURTHY
+ WRIT APPEAL NO.812 OF 2021
% Dated 28.01.2022
#
W.A.No.812 OF 2021
Potluri Anjali
d/o Hanumantha Rao
r/o Zarugumalli Mandal,
Prakasam District ..... Appellant
Vs.
$
The State of Andhra Pradesh,
Rep. by its Principal Secretary,
School Education (Exams) Department
Secretariat, Velagapudi and 6 others ..Respondents
! Counsel for the petitioner : Mr. P. Nagendra Reddy
^ Counsel for the Respondent Nos. 1 to 5 : Mr. Bhim Rao, learned Government
Pleader for Services - III
Counsel for Respondent Nos. 6 & 7 : Mrs. A. Varalakshmi
<GIST:
> HEAD NOTE:
? Cases referred
1. 2004 AIR SCW 5699
2. Civil Appeal No.6860 of 2021 dated 18.11.2021
3. 1980 AIR 1230
4. (2005) 9 Supreme Court Cases 779
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3
THE HIGH COURT OF ANDHRA PRADESH : AMARAVATI
HON'BLE MR. JUSTICE PRASHANT KUMAR MISHRA, CHIEF JUSTICE
AND
HON'BLE MR. JUSTICE M. SATYANARAYANA MURTHY
WRIT APPEAL NO.812 OF 2021
(Proceedings through Physical mode)
W.A.No.812 OF 2021
Potluri Anjali,
d/o Hanumantha Rao
r/o Zarugumalli Mandal,
Prakasam District ..... Appellant
Versus
The State of Andhra Prdesh
Rep. by its Principal Secretary
School Education (Exams) Department
Secretariat, Amaravati and 6 others .... Respondents
Counsel for the Appellants : Mr. P. Nagendra Reddy
Counsel for Respondent Nos. 1 to 5 : Government Pleader for Services-III
Counsel for Respondent Nos. 6 & 7 : Mrs. A. Varalakshmi
JUDGMENT
Dt.28.01.2022
(Per M. Satyanarayana Murthy, J)
Aggrieved by the order passed by the learned single Judge in
W.P.No.9827 of 2021 dated 06.10.2021, the petitioner - appellant
preferred this writ appeal under Clause 15 of Letter Patent. The learned
single Judge dismissed the writ petition, denying the relief of writ of
mandamus, as the petitioner failed to submit her sub-caste certificate for
verification within the stipulated time.
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The appellant herein was the writ petitioner and the respondents
herein were the respondents before the learned single Judge. They will
hereinafter be referred as arrayed in W.P.No.9827 of2021 for the sake of
convenience.
The writ petitioner - Ms. Potluru Anjali filed the writ petition under
Article 226 of the Constitution of India, claiming the following relief:
"to issue a writ order or direction more particularly one in the Writ of
Mandamus to declare the action of Respondent Nos. 2 to 5 in not
selecting the petitioner as Secondary Grade Teacher by generating the
Provisional Selection List to the post of SGT (TEL) under ST (Yanadi) in
Prakasam District, duly placing her name above the petitioner above the
name of Respondent No.6 as illegal, arbitrary and consequently direct
the respondents to select the petitioner as Secondary Grade Teacher by
issuing fresh provisional list to the post of SGT (TEL) under ST (Yanadi) in
Prakasam District, duly placing the name of the petitioner above the
name of Respondent No.6, pursuant to Memo No.ESE02-
20022/66/2020-RECTMT-CSE dated 21.01.2021 issued by the second
respondent with all consequential benefits."
The first respondent vide G.O.Ms.No.67 dated 26.10.2018 issued
Scheme of Selection Rules for Teacher Eligibility Test-cum-Teacher
Recruitment Test (TET-cum-TRT). The petitioner appeared for online
examination, secured Rank No.3,726, whereas, Respondent No.6 secured
3,916 and Respondent No.7 secured Rank No.4,412. Subsequently, the
respondents displayed provisional selection list (Phase-I), but the name
of the petitioner and names of Respondent Nos. 6 & 7 were not found in
Phase-I List. Later, the respondents published provisional selection list
SGT (Phase-II) and in the said list, the names of Respondent Nos. 6 & 7
were found. Even though, the petitioner secured better rank, her name
was not found. The same provisional list was repeated for another five
times, even when the official respondents published the provisional
selection. The official respondents informed that Scheduled Tribe
(Yanadi) and Scheduled Tribe (Chenchu) candidates are eligible for
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selection in the schools of Tribal non-scheduled areas in Ashram schools
in Prakasam District. As no column is provided in online application
specifying the sub-caste of schedule tribe candidates, the IT cell which is
under the control of the second respondent sent message to all the
Scheduled Tribe candidates instructing them to submit the sub-caste
certificate through online except to the petitioner. Since the petitioner did
not submit the sub-caste certificate that she belongs to Schedule Tribe
i.e. sub-caste (Yanadi), the respondents did not consider her candidature
for selection, but Respondent Nos. 6 & 7 were considered even though
they secured lesser marks than her. The petitioner submitted
applications to Respondent Nos. 2 to 5 informing that she did not receive
SMS for submitting the sub-caste certificate through online. The second
respondent also directed the IT cell to generate the provisional selection
list to the post of Secondary Grade Teacher (Telugu) under Scheduled
Tribe (Yanadi) in Prakasam District duly considering petitioner‟s Hall
Ticket, Rank under Scheduled Tribe (Yanadi) Quota. The IT cell on
verification found that, since the SMS was not being reached, they tried
for eight times but they could not succeed. Therefore, the respondents
should have made a phone call to her mobile phone number or should
have sent a letter to petitioner‟s residential address informing her that
she is required to submit the caste certificate through online. But the
official respondents did not make any attempt to communicate the same,
calling upon her to submit sub-caste certificate of Scheduled Tribe
(Yanadi) through online and therefore, she could not submit her sub-
caste certificate to the official respondents within time, thereby, she was
not selected for the post, though she secured more marks than
Respondent Nos. 6 & 7. On the representation made by the petitioner,
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no appropriate action was taken by the official respondents. Since the
petitioner did not receive SMS from the IT cell of the second respondent
and as it is purely the mistake on the part of the second respondent
office, even though the petitioner obtained better rank than Respondent
Nos. 6 & 7, she did not get selection as Secondary Grade Teacher and the
petitioner was deprived of an opportunity in public employment as
Secondary Grade Teacher (Telugu) and the petitioner sought a direction
as stated supra.
The second respondent filed counter affidavit in the writ petition
admitting about the petitioner‟s participation in the selection process,
securing higher rank than Respondent Nos. 6 & 7, non-selection is due
to her failure to submit sub-caste certificate of Yanadi under Scheduled
Caste. The second respondent also admitted that, the petitioner secured
52.5333 marks in the Entrance Examination and obtained 3276 rank.
After declaration of results, as per the norms of notification, a telephonic
communication was sent to all the selected candidates to upload sub-
caste certificate. Accordingly, the IT cell which is under the control of the
second respondent sent messages to all the Scheduled Tribe candidates
instructing them to submit the sub-caste certificate through online.
Accordingly, messages were sent to all the candidates including the
petitioner to the mobile number given by her at the time of submission of
application. The messages were sent to the petitioners continuously from
11.03.2020 to 17.03.2020. But, the messages could not reach the
petitioner, as such, she did not submit her sub-caste certificate, thereby,
she was disqualified.
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While submitting an application itself, it was clearly informed to
submit only proper phone number for communication and the same
shall be maintained till completion of recruitment process, as such, there
is no deviation in the process of communication sent to the petitioner by
SMS including all candidates, to upload sub-caste certificate. The
petitioner failed to upload her sub-caste certificate inspite of several
messages and no response was received from the petitioner and the
message was sent to the petitioner mobile number 9666256582 the
details of result is shown in the following statement:
To mobile no On date Delivered on Error text
9666256582 2020-03-11 2020-03-11 VMSC: unexpected response
13:12:24 16:05:34 received
9666256582 2020-03-11 2020-03-11 VMSC: unexpected response
16:05:32 20:05:33 received
9666256582 2020-03-12 2020-03-12 VMSC: unexpected response
16:04:54 20:03:36 received
9666256582 2020-03-12 2020-03-12 VMSC: unexpected response
16:04:54 20:03:36 received
9666256582 2020-03-13 2020-03-13 Absent subscriber
12:03:44 15:33:13
9666256582 2020-03-13 2020-03-13 Absent subscriber
16:03:06 17:06:35
9666256582 2020-03-14 2020-03-14 Absent subscriber
12:03:32 19:26:22
9666256582 2020-03-15 2020-03-15 Absent subscriber
12:03:18 16:04:20
9666256582 2020-03-15 2020-03-15 Absent subscriber
16:03:07 20:03:19
9666256582 2020-03-16 2020-03-16 Absent subscriber
12:04:29 16:06:30
9666256582 2020-03-16 2020-03-16 Absent subscriber
16:06:10 20:06:24
9666256582 2020-03-17 2020-03-17 Absent subscriber
12:04:14 16:05:17
The office of the second respondent i.e. IT cell repeatedly sent SMS
to the petitioner eleven times. In turn, the response of the petitioner‟s
phone is 'unexpected response received' four times and for the last
eight SMS, response was 'absent subscriber', as stated in the table. The
details of statement and delivery of response are available and therefore,
denial of employment to the petitioner is only on account of her failure to
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submit her sub-caste certificate, but not otherwise. Accordingly,
provisional list was finalized and candidates were selected by duly
following the prescribed procedure. The petitioner failed to submit her
certificates, as per the norms prescribed in notification at Point No.18
under the heading of preparation of provisional lists @ vi) next candidate
was selected. The relevant rule is extracted hereunder:
"(vi) If the certificates are not found to be genuine/correct and if the
candidate fails to produce the certificates required at the time of
verification or if the candidate is absent for verification of
certificates, such candidates shall forego the right of selection, and
next eligible candidate shall be considered for certificates
verification."
As the petitioner failed to submit her details in response to the
message sent to her, the next immediate candidate was selected and
given appointment and the same is done without any deviation. The
respondents admitted about representation dated 11.04.2021 stating
that the petitioner has not received any communication from the
respondents. Immediately said fact has been verified with the IT cell and
came to know that there is no miscommunication in sending the
message to the petitioner and particular message was sent to her
continuously for seven days. However, by considering the petitioner‟s
representation, a show cause notice was issued to the fourth respondent
on 20.11.2020 calling for explanation. In response, the fourth
respondent submitted report on 19.02.2021. After considering the
explanation submitted by the unofficial respondent, it was found that
there is no deviation in the recruitment procedure, that the second
respondent was not at fault and finally requested to dismiss the writ
petition.
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Respondent Nos. 6 & 7 filed common counter affidavit, denying
material allegations, while drawing attention of this Court to
Clause 20 (iv) of the Information Bulletin and would contend that, when
the petitioner failed to submit her sub-caste certificate to the second
respondent, denial of appointment to her, though she secured better
rank in the examination is not illegal. Respondent Nos. 6 & 7 reiterated
the contentions raised by the second respondent with regard to sending
SMS and failure of the petitioner to submit her sub-caste certificate,
thereby, Respondent Nos. 6 & 7 were selected who are in the next rank
to the petitioner and thus, there is no illegality in their appointment as
Secondary Grade Teacher (Telugu) under the quota meant for Scheduled
Tribe, since Respondent Nos. 6 & 7 uploaded their sub-caste certificates
on receipt of SMS from the second respondent. Hence, there is no
illegality on the part of Respondent Nos. 6 & 7 and requested to dismiss
the writ petition.
Considering rival contentions, perusing the material available on
record, the learned single Judge held that, the Information Bulletin
issued to the candidates also talks about helpline being available from
01.11.2018 till the completion of recruitment, but the petitioner did not
avail the facility of helpline and that the petitioner failed to submit her
sub-caste certificate for verification as required, within the stipulated
time. Whereas, Respondent Nos. 6 & 7 submitted their sub-caste
certificates on receipt of SMS through their cell phone number and the
petitioner alone is at fault, consequently, not entitled to claim any relief
in the writ petition, since the petitioner did not possess any right to claim
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appointment, thereby, the question of issue of writ of mandamus does
not arise and dismissed the writ petition.
Feeling aggrieved, the present writ appeal is filed raising several
contentions, more particularly, failure to provide a specific column in the
proforma of application as to sub-caste and non receipt of any
information through SMS is not her failure to submit sub-caste
certificate (Yanadi) a member of Scheduled Tribe. No negligence is
attributable to this petitioner, since she obtained certificate of sub-caste
long prior to commencement of selection process i.e. on 20.01.2014, but
because of negligence of the official respondents in communicating the
same to the petitioner, requiring the petitioner to submit the sub-caste
certificate of scheduled caste, she lost her chance of appointment as
Secondary Grade Teacher (Telugu) and for the negligence or mistake of
the official respondents, the petitioner shall not be put to any loss. But,
the learned single Judge did not consider the same in proper perspective
and requested to set-aside the order passed by the learned singe Judge,
while issuing a direction as claimed by the petitioner.
Sri P. Nagendra Reddy, learned counsel for the petitioner contended
that, when no communication was received for submission of sub-caste
certificate through SMS or through any other authorized mode, no
knowledge is attributable to this petitioner regarding requirement to
submit sub-caste certificate of Schedule Tribe. Apart from that, there are
many situations where SMS would not reach a particular cell phone
number, obviously due to poor network and failure of the service provider
or for any other reason beyond the control of petitioner and making an
attempt to send message which had not reached, admittedly, by the
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respondents is not a proper communication. Unless SMS is received by
this petitioner, no negligence is attributable to this petitioner for her
failure to submit sub-caste certificate.
It is also contended that, when the petitioner obtained sub-caste
certificate in the year 2014 itself, actually she belongs to Yanadi
community, mere failure to submit an certificate cannot deprive her
appointment as Secondary Grade Teacher and placed reliance on the
judgment of the Hon‟ble Apex Court in Dolly Chhanda v. Chairman,
JEE1 and requested to issue a direction as stated above, setting-aside
the order passed by the learned single Judge.
Refuting the contentions of the learned counsel for the petitioner,
Sri P. Nagendra Reddy, learned Government Pleader for Services-III
heavily relied on the information received from the IT Cell of the
respondents, which the respondents extracted in the counter affidavit, to
contend that the IT cell of the second respondent made sincere and
honest attempt to communicate the requirement of submission of sub-
caste certificate to the petitioner, but failed due to different reasons
mentioned above. Hence, the second respondent is not at fault and on
the other hand, sending SMS is sufficient communication and reaching
SMS to the petitioner is not relevant and it is not their duty. In support
of his contention, he placed reliance on unreported judgment of the
Hon‟ble Apex Court in State of Uttar Pradesh v. Pankaj Kumar2. On
the strength of the principle laid down in the above judgment, learned
Government Pleader contended that, the sincere attempt made by the
second respondent through fourth respondent to submit sub-caste
1 2004 AIR SCW 5699
2 Civil Appeal No. 6860 OF 2021 dated 18.11.2021
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certificate to the petitioner is sufficient to conclude that the petitioner
failed to submit her sub-caste certificate within the stipulated time and
thereby, her non-selection as Secondary Grade Teacher is not an
illegality, in view of Clause 20 (iv) of the Information Bulletin and
requested to dismiss the writ appeal, affirming the order passed by the
learned single Judge.
Heard Smt. A. Varalakshmi for Respondent Nos. 6 & 7, who
supported the action of Respondent No.2 in appointing
Respondent Nos.6 & 7.
During hearing, this Court issued a direction to the second
respondent to file an affidavit explaining the reasons noted in the table
incorporated in the counter affidavit. Accordingly an affidavit is filed on
03.01.2022 explaining the terms of „error text‟, viz., „Barred‟, „VMSC‟,
„Absent Subscriber‟ and they are reproduced for better appreciation of
the case.
1. BARRED : Originator (Source Address) or Destination
Number is barred by the operator.
2. # VMSC : unexpected data : he message SMSC sends to
VMSC is recognized but some fields in which VMSC
returns uncorrect?.
3. ABSENT-SUB : Absent subscriber: Subscriber is in
insufficient or out of network range or MS is switched
OFF.
Based on the argument of both learned counsel for the petitioner;
Respondent Nos. 2 to 4 and perusing the order of the learned single
Judge in the Intra Court appeal, the points that need to be answered are
as follows:
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1. Whether the second respondent sent any communication in
any authroized mode to the petitioner, calling upon her to
submit her sub-caste certificate within the stipulated time
and whether sending SMS which is not received by the
petitioner is sufficient communication?
2. Whether failure of this petitioner to submit her sub-caste
certificate, though she obtained the same more than 6
years ago from the competent authority is a ground to
denial of appointment to the petitioner. If not, whether a
direction be issued to the second respondent to appoint her
to the post of Secondary Grade Teacher (Telugu) under
Scheduled Tribe (Yanadi) Quota with all consequential
service benefits?
P O I N T No.1:
The main contention of the petitioner throughout is that, no SMS
was received by her from the second respondent or any of the official
respondents calling upon her to submit sub-caste certificate. But, this
contention is refuted by the respondents contending that SMS was sent
to the petitioner calling upon her to submit sub-caste certificate, the
same has not been reached to the addressee i.e the mobile phone of this
petitioner. SMSs were sent during 11.03.2020 to 17.03.2020 i.e. for one
week and they were not received by the petitioner. The petitioner is
bound to maintain the same mobile connection with same number to
send communication to the petitioner as per the Information Bulletin.
Accordingly, she submitted her mobile number to contact her by the
official respondents in case of sending any information and they also
maintained helpline to provide the details of selection, despite all these
precautions taken by the official respondents, the petitioner did not
submit sub-caste certificate claiming to be a member of Yanadi
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community, which is a Scheduled Tribe, since the post of Secondary
Grade Teacher (Telugu) is reserved for "Yanadi" and "Chenchu"
communities. The respondents reproduced the details of SMS error
description and list of error descriptions in the counter affidavit in the
form of questionnaire, the details are already extracted in Page No.5
herein above:
As seen from the contentions raised by the second respondent in
the counter affidavit, the respondents received "unexpected response"
for four messages and for other messages they received information as
'absent subscriber' as mentioned in the table under the column 'Error
Text'. Thus, it is clear from the information furnished by the second
respondent that these messages though sent by the originator i.e. second
respondent, they did not reach the addressee i.e. the petitioner herein
with Mobile No.9666256582. The official respondents never contended
that the communication had reached the addressee when sent by SMS by
the official respondents calling upon the petitioner to submit her sub-
caste certificate between 11.03.2020 to 17.03.2020. Thus, it is
unambiguous from the material that, the messages were not reached to
the addressee i.e. the petitioner and she did not acknowledge receipt of
the same.
Learned counsel for the petitioner would contend that, when SMS
were sent to the mobile number of the petitioner, which is an authroized
mode, it is deemed to have been served on the petitioner and placed
reliance on the judgment of the Apex Court in State of Uttar Pradesh v.
Pankaj Kumar (referred supra). In the facts of the above judgment, the
candidates who were required to appear for the physical fitness test and
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document verification were intimated by issuing SMS over the mobile
phone, the number of which had been furnished in the application.
Several other candidates who had received such SMS had appeared and
taken part in the process of document verification and the physical fitness
test. The respondent, who had not appeared, made out a grievance about
appellants not intimating the respondent through post. The respondent
filed the writ petition bearing SS No.693 of 2019 seeking that the
appellants herein be directed to complete the document verification and
the physical fitness test of the respondent pertaining to his height, weight
and chest measurement and to declare the result after completing the
process. The learned single Judge arrived at a conclusion that there was
inadvertence on the part of the respondents, since the applicant would
not have deliberately not participated in the process of recruitment.
In that circumstance, as a matter of equitable consideration, the Learned
Single Judge had directed the appellants to permit the petitioner to
appear for the document verification and physical fitness test for the post
of Constable in pursuance to the recruitment notification. The recruiting
authority preferred Special Appeal No.366/2019 before the Division
Bench of the High Court. The Division Bench having extracted the portion
of the observations made by the Learned Single Judge wherein an
equitable consideration was made and dismissed the Special Appeal.
Aggrieved by the same, Civil Appeal No.6860 of 2021 was preferred before
the Apex Court and the Apex Court reversed the findings of the High
Court in Division Bench and learned single Judge, holding that it is for
the candidate to intimate any change to the authorities, since such
change would be within the knowledge of the candidate and it is in his or
her own interest such intimation is to be made. In the said case, when
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there can be no dispute that the respondent was in possession of the
same mobile connection, the detail of which was furnished in the
application and the SMS had been sent to the respondent, the respondent
having not acted on the same cannot at his own convenience make
request to be permitted to participate in the selection process which has
already concluded, not having utilized the opportunity which was
available to him. It was also noted that the writ petitioner before the
learned single Judge therein exhibited casual attitude and declined to
accept the contention of the writ petitioner while allowing Civil Appeal
No.6860 of 2021. Thus, based on the principle laid down in the above
judgment, the learned Government Pleader for Services-III supported non-
selection of this petitioner as Secondary Grade Teacher (Telugu) under
reserved category for Yanadi and Chenchu castes under Scheduled Tribe
quota.
Based on the facts, the Apex Court in State of Uttar Pradesh v.
Pankaj Kumar (referred supra) concluded that the writ petitioner therein
is in possession of the same mobile number. Even if there is any change
in the mobile number, it is for them to communicate to the office of the
respondents with regard to recruitment process if necessary. In the
present case, it was not the case of the respondents that the SMS have
reached the petitioner, but received different responses as mentioned in
the table viz; „VMSC: unexpected response received‟ and „Absent
subscriber‟. That means that the messages did not reach the cell phone
number of this petitioner. In State of Uttar Pradesh v. Pankaj Kumar
(referred supra) the Hon‟ble Apex Court did not advert to various
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provisions of the Information Technology Act, 2000 (for short „the Act‟),
which deals about the service of messages, electronic communication etc.
Undoubtedly, communication made by SMS through mobile or
computer is an electronic message. But, electronic message is not defined
under the Information Technology Act, 2000. However, „electronic record‟
is defined under Section 2(t) of the Act, which means electronic record
means data, record or data generated, image or sound stored, received or
sent in an electronic form or micro film or computer generated micro
fiche. SMS allegedly sent by the second respondent to the petitioner
would fall within „electronic record‟ through a communication device as
defined under Section 2(ha). According to Section 2(ha) of the Act,
communication device means cell phones, personal digital assistance or
combination of both or any other device used to communicate, send or
transmit any text, video, audio or image. Therefore, the message sent
either through cell phone i.e communication device as defined under
Section 2(ha) is only an electronic record as defined under Section 2(t) of
the Act; by the originator as defined under Section 2(za) of the Act.
According to Section 2(za), „originator‟ means a person who sends,
generates, stores or transmits any electronic message or causes any
electronic message to be sent, generated, stored or transmitted to any
other person but does not include an intermediary. Therefore, the IT cell
of the second respondent is the originator who allegedly sent the
„electronic message‟ to the addressee - the petitioner herein, as defined
under Section 2(b) of the Act. According to Section 2(b), addressee means
a person who is intended by the originator to receive the electronic record
but does not include any intermediary. Thus, it is clear from the
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definitions of „electronic record‟, „communication device‟, „originator‟ and
„addressee‟, that the petitioner is the addressee and the second
respondent is the originator, who sent information through
communication device as defined under Section 2(ha) of the Act. Such
information can be said to be an electronic record as defined under
Section 2(t) of the Act.
Section 12 of the Act deals with „Acknowledgment of receipt‟ and it
is necessary to extract the same for better appreciation of the contentions
of both parties. Accordingly, it is extracted hereunder:
(1) Where the originator has not 3 [stipulated] that the
acknowledgment of receipt of electronic record be given in a
particular form or by a particular method, an acknowledgment
may be given by-- (a) any communication by the addressee,
automated or otherwise; or (b) any conduct of the addressee,
sufficient to indicate to the originator that the electronic record has
been received.
(2) Where the originator has stipulated that the electronic record
shall be binding only on receipt of an acknowledgment of such
electronic record by him, then unless acknowledgment has been so
received, the electronic record shall he deemed to have been never
sent by the originator.
(3) Where the originator has not stipulated that the electronic
record shall be binding only on receipt of such acknowledgment,
and the acknowledgment has not been received by the originator
within the time specified or agreed or, if no time has been specified
or agreed to within a reasonable time, then the originator may give
notice to the addressee stating that no acknowledgment has been
received by him and specifying a reasonable time by which the
acknowledgment must be received by him and if no
acknowledgment is received within the aforesaid time limit he may
after giving notice to the addressee, treat the electronic record as
though it has never been sent."
On close analysis of Sub-section (2) of Section 12, where the
originator has stipulated that the electronic record shall be binding only
on receipt of an acknowledgment of such electronic record by him, then,
unless acknowledgment has been so received, the electronic record shall
be deemed to have been never sent by the originator. Sub-section (3) of
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Section 12 says that, where the originator has not stipulated that the
electronic record shall be binding only on receipt of such
acknowledgment, and the acknowledgment has not been received by the
originator within the time specified or agreed or, if no time has been
specified or agreed to within a reasonable time, then the originator may
give notice to the addressee stating that no acknowledgment has been
received by him and specifying a reasonable time by which the
acknowledgment must be received by him and if no acknowledgment is
received within the aforesaid time limit he may after giving notice to the
addressee, treat the electronic record as though it has never been sent.
Here, there was no stipulation by the originator that the electronic
record shall be binding only on receipt of such acknowledgment. In such
case, Section 12(3) of the Act is applicable and when no acknowledgment
was sent by the originator i.e. the second respondent within the time
specified, originator is under obligation to give notice to the addressee to
treat the electronic record as though it has never been sent. Electronic
record received or acknowledged by the addressee though it was never
been sent. In the instant case on record, admittedly the originator - the
second respondent did not issue any notice to the addressee - petitioner
herein giving intimation about sending of electronic record by
communication device. Therefore, when the respondent failed to follow the
procedure under Section 12(3) of the Act, the Court cannot presume that
the SMS were sent to the petitioner i.e. addressee. In the absence of
compliance of mandatory requirement under Section 12(3), we are not
unable to accept the contention of the second respondent that the SMS is
deemed to be served on the addressee i.e the petitioner herein, relying on
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the judgment of the Apex Court in State of Uttar Pradesh v. Pankaj
Kumar (referred supra).
The judgment of the Apex Court is distinguishable on facts, as the
SMS were sent in the facts of the judgment of the Apex Court in State of
Uttar Pradesh v. Pankaj Kumar (referred supra) and not known
whether those SMS were reached to the addressee from the originator.
But, in the instant case, SMS were allegedly sent by the originator -
second respondent and received error text viz „VMSC: unexpected
response received‟ and „Absent subscriber‟. In such case, the messages
sent by the originator - second respondent can be held to be not reached
to the addressee - the petitioner herein and consequently, failure of the
petitioner to submit sub-caste certificate as required, in view of the
contentions raised by the respondents cannot be held to be negligent or
intentional avoidance to submit the required sub-caste certificate, more
particularly, when she is claiming reservation under particular sub-caste
of Yanadi under Scheduled Tribe reservation quota. But, the learned
single Judge did not consider various provisions of Information
Technology Act, 2000, and simply concluded that the petitioner failed to
submit required sub-caste certificate to claim appointment under
reserved category under Scheduled Tribe Quota. The finding of the
learned single Judge about service of SMS on the addressee - petitioner
herein from the originator - second respondent is ex facie erroneous.
Therefore, the finding of the learned single Judge regarding service of
SMS on the petitioner - addressee from the originator - second
respondent is without any basis and contrary to various provisions of
Information Technology Act, 2000.
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In view of our foregoing discussion, in view of the fact that the SMS
allegedly sent to the petitioner - addressee by the originator - second
respondent, which was admittedly not received by the petitioner -
addressee with error ext „VMSC: unexpected response received‟ and
„Absent subscriber‟, we are not able to accept the contention raised by the
respondents in the writ petition about service of SMS, for the simple
reason that the SMS sent to the petitioner have not reached her mobile
number. Therefore, unhesitatingly, we hold that the communication sent
to the petitioner - addressee by the originator - second respondent for
production of sub-caste certificate within the specified time is not
sufficient communication. Accordingly, the point is answered.
P O I N T No.2:
As discussed above, no communication i.e. SMS was received by
the petitioner for furnishing her sub-caste certificate within the stipulated
time. Failure to submit the sub-caste certificate is not on account of the
petitioner‟s negligence or any other reasons attributable to her. We
already held that communication sent to the petitioner - addressee by the
originator - second respondent for production of sub-caste certificate
within the specified time is not sufficient communication, while answering
Point No.1.
Though the petitioner obtained sub-caste certificate from the
competent authority in the year 2014 itself, failure to submit such
certificate as required in the selection process by the appointing
authorities is not a ground to reject the appointment of this petitioner as
Secondary Grade Teacher (Telugu). The learned counsel for the petitioner,
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in support of his contention placed reliance on the judgments of the Apex
Court in Charles. K. Skaria vs Dr.C.Mathew3 and Dolly Chhanda v.
Chairman, JEE and others4. In Charles. K. Skaria vs Dr.C.Mathew
(referred supra), the controversy related to admission to a post graduate
course in medicine. The relevant rule provided for addition of 10% marks
if a candidate possessed a diploma in the relevant subject or sub-
specialty and this benefit could be given only if the candidate's success in
the diploma course was brought to the knowledge of the Selection
Committee before completion of selection in an authentic or acceptable
manner. The Prospectus provided that the attested copies of statement of
marks and other documents should be attached with every application.
Three such candidates were given admission who had not attached the
certificate of having passed the diploma along with their applications.
Their admission to post graduate course was set aside by the High Court
on the ground that their applications, wherein they claimed the benefit of
diploma, were liable to be rejected as the requisite certificates had not
been attached. The Apex Court reversed the judgment of the High Court
and held that the admission to the candidates had rightly been given as
they had in fact passed the diploma before the date fixed. The relevant
parts of paras 20 and 24 of the judgment, where this principle was
highlighted are being reproduced below:
"20. There is nothing unreasonable or arbitrary in adding 10 marks for
holders of a diploma. But to earn these extra 10 marks, the diploma
must be obtained at least on or before the last date for application, not
later. Proof of having obtained a diploma is different from the factum of
having got it. Has the candidate, in fact, secured a diploma before the
final date of application for admission to the degree course ? That is the
primary question. It is prudent to produce evidence of the diploma along
1980 AIR 1230
(2005) 9 Supreme Court Cases 779
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with the application, but that is secondary. Relaxation of the date on the
first is illegal, not so on the second. Academic excellence, through a
diploma for which extra mark is granted, cannot be denuded because
proof is produced only later, yet before the date of actual selection. The
emphasis is on the diploma; the proof thereof subserves the factum of
possession of the diploma and is not an independent factor. Mode of
proof is geared to the goal of the qualification in question. It is subversive
of sound interpretation and realistic decoding of the prescription to
telescope the two and make both mandatory in point of time. What is
essential is the possession of a diploma before the given date; what is
ancillary is the safe mode of proof of the qualification. To confuse
between a fact and its proof is blurred perspicacity. To make mandatory
the date of acquiring the additional qualification before the last date for
application makes sense. But if it is unshakeably shown that the
qualification has been acquired before the relevant date, as is the case
here, to invalidate this merit factor because proof, though indubitable,
was adduced a few days later but before the selection or in a manner
not mentioned in the prospectus, but still above-board, is to make
procedure not the handmaid but the mistress and form not as
subservient to substance but as superior to the essence.
24. It is notorious that this formalistic, ritualistic, approach is unrealistic
and is unwittingly traumatic, unjust and subversive of the purpose of the
exercise. This way of viewing problems dehumanizes the administrative,
judicial and even legislative processes in the wider perspective of law for
man and not man for law. Much of hardship and harassment in
administration flows from over-emphasis on the external rather than the
essential. We think the government and the selection committee rightly
treated as directory (not mandatory) the mode of proving the holding of
diplomas and as mandatory the actual possession of the diploma. In
actual life, we know how exasperatingly dilatory it is to get copies of
degrees, decrees and deeds, not to speak of other authenticated
documents like mark-lists from universities, why, even bail orders from
courts and government orders from public offices."
In Dolly Chhanda v. Chairman, JEE and others (referred supra),
the Apex Court again relied on the principle laid down in Charles. K.
Skaria vs Dr.C.Mathew (referred supra). In the facts of Dolly Chhanda
v. Chairman, JEE and others (referred supra), the appellant qualified in
Joint Entrance Examination, 2003, but having been denied admission
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due to fault of authorities, who adopted a highly technical and rigid
attitude towards the appellants. The Court was of the opinion that, failure
of this petitioner to submit certificate which was already obtained by him
is not a ground to reject admission into JEE examination and the order of
the learned single Judge was set-aside by the Apex Court.
In the instant case, the petitioner had already obtained sub-caste
certificate on 20.01.2014 from the Tahsildar, Zarugumilli Mandal. But,
due to lack of information or non receipt of any SMS allegedly sent by the
second respondent, she could not furnish the same to the second
respondent or uploaded to the web portal of second respondent. Hence,
the judgment in Dolly Chhanda v. Chairman, JEE and others (referred
supra) is directly applicable to the present facts of the case, since no
material is available on record regarding compliance of Section 12(3) of
Information Technology Act, 2000, to presume or draw an inference that
the communication i.e. SMS had reached the mobile number of this
petitioner. Even according to the official respondents, the communication
did not reach the mobile number of this petitioner, in view of error text
messages.
The main endeavour of this petitioner in the Information Bulletin, it
is specifically stated that, the communication will be sent through SMS to
the candidate on providing mobile number to the recruiting authority i.e
second respondent. On verification of entire Information Bulletin, there is
nothing specifically directing the petitioner to furnish mobile number to
communicate the information about process of recruitment. Clause
No.20 (iv) of the Information Bulletin was relied on by the second
respondent, since the petitioner failed to submit sub-caste certificate.
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Undoubtedly, Clause No.20 (iv) is incorporated in the Information
Bulletin. According to it, after preparation of provisional merit-cum-roster
list, the candidates are required to furnish original qualification
certificates and failure to furnish the same, disqualifies such candidate
for selection. In the absence of any specific direction for providing mobile
number for communication purpose, mere providing a column for
furnishing mobile number in the application form without providing a
column for sub-caste in the application, the contention of the second
respondent is rejected, as the petitioner was not required to mention and
submit sub-caste certificate in support of it. Even the application
discloses the mobile number of this petitioner. But, it is silent that the
communication will be sent only through the said mobile number.
A copy of the receipt dated 05.11.2018 submitted by the petitioner
is evidencing payment of requisite examination fee is placed on record.
Specific notes are mentioned under the receipt, which reads as follows:
Provide candidate valid mobile number with payment. Any future
communication (Notification related message alerts, Otp) send to
candidate Mobile Number only.
Provide candidate valid Aadhar, Mobile, Community and PH
details. No changes are entertained after payment.
Candidate alone responsible if any wrong entries (Addhar,
Mobile, Community...) are made by the candidate in the payment
form.
Taking advantage of this note under the Transaction Receipt dated
05.11.2018, which is not part of Information Bulletin or the application
form, the second respondent contended that the communication will be
sent only through cell phone about the process of recruitment. When it
was not the condition either in the Information Bulletin or application
form, it cannot be made as mandatory for communicating later. If that is
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the strict rule, a person who is not holding cell phone is disqualified for
appearing for the examination, though it is not a disqualification as per
rules. Such condition in the receipt cannot be construed strictly, but on
harmonious construction, such condition cannot be said to be
mandatory. Therefore, sending messages by SMS to the cell phone
number of the candidate cannot deprive a person who is not possessing
mobile number of where the network is poor. On the basis of such
condition, no candidate shall be deprived from selection to Secondary
Grade Teacher. If the petitioner was selected, she would have been in
appropriate place in the roster. But, for the mistake of Respondent Nos. 2,
she cannot be deprived of the benefits of service, and atleast notional
seniority shall be given from the date of her juniors were appointed.
Hence, we direct the second respondent to appoint this petitioner at
appropriate roster point as Secondary Grade Teacher (Telugu) giving
benefit of notional seniority from the date when less meritorious
candidates to the petitioner are appointed.
The petitioner is a woman belonging to Yanadi Community, mostly
residing in a remote place in Tribal Areas and living below poverty line.
Such persons are not expected to maintain network, accessing to the
helpline provided by the official respondents to get updated about the
process of recruitment. Therefore, it is difficult to attribute any knowledge
to this petitioner about requirement to submit sub-caste certificate under
Scheduled Tribe Quota to claim benefit of reservation under Yanadi
Community under Scheduled Tribe quota. Hence, the finding recorded by
the learned single Judge that the petitioner was negligent in submitting
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sub-caste certificate to the second respondent is contrary to the law laid
down by the Apex Court. Accordingly, the point is answered.
In the result, writ appeal is allowed, setting-aside the order of the
learned singe Judge in W.P.No.9827 of 2021 dated 06.10.2021; while
directing Respondent Nos.1 to 5 to appoint this petitioner as Secondary
Grade Teacher (Telugu) under Scheduled Tribe (Yanadi) Reservation
Quota in Prakasam District, at appropriate roster point, giving benefit of
notional seniority from the date when less meritorious candidates to the
petitioner are appointed. In case, no vacancy is available in the cadre,
respondents are directed to create one supernumerary post. However, the
petitioner is not entitled to claim monetary benefit, as she was not
appointed to the post on the principle of NO WORK - NO PAY. No costs.
Consequently, miscellaneous petitions pending, if any, shall also
stand closed.
PRASHANT KUMAR MISHRA, CJ M. SATYANARAYANA MURTHY, J
SP
