Delhi High Court

Ajay Kumar Mishra vs Union Of India & Ors. on 23 December, 2016

$

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                    Date of decision: 23.12.2016
+            W.P.(C) 11642/2016 and CM No. 45868/2016 (stay)

      AJAY KUMAR MISHRA                                ..... Petitioner
                  Through:           Mr. Vibhav Srivastava, Advocate.

                         versus


      UNION OF INDIA & ORS.                      ..... Respondents
                    Through:         Mr. Anil Dabas, Advocate for
                                     respondents 1, 5 and 6.
                                     Mr. Naresh Kaushik, Advocate for
                                     respondents 2, 3 and 4.
                                     Ms. Shriambhra Kashyap and
                                     Mr. Naresh Kaushik, Advocates
                                     for UPSC.
      CORAM:
      HON'BLE MS. JUSTICE INDIRA BANERJEE
      HON'BLE MR. JUSTICE ANIL KUMAR CHAWLA


                                  JUDGMENT

INDIRA BANERJEE, J (ORAL)

1. In this writ petition, the petitioner has challenged an order dated

11/11/2016, whereby the candidature of the petitioner for admission to

the National Defence Academy has been cancelled on the ground of

furnishing incorrect information about the actual date of birth of the

petitioner, in his application, and the petitioner has been informed that

the petitioner had rendered himself liable for disciplinary action as per

Rule 3 (3) of the Examination Notice No. 02/2016 - NBA - 1 dated 02 -

01 - 2016.

2. The Union Public Service Commission, being the respondent No. 2

published the said notice dated 02/01/2016, inviting applications inter

alia for various posts in the Army wing of the National Defence

Academy.

3. Pursuant to the notice, the petitioner applied online and was given

the registration ID 11603758247. A copy of the application form has

been annexed to the writ petition as Annexure 3. According to the

petitioner, at the time of downloading the admit card for the written

examination, the petitioner noticed that his date of birth had erroneously

been entered as 11th of July 1998 instead of 10th of July 1998. The

petitioner duly applied for rectification of the error in the date of birth.

4. In the meanwhile, the petitioner appeared for the written

examination, which he successfully cleared, after which, he was called

for an interview. The petitioner successfully cleared the interview as well

as the medical test. However, the petitioner was not allowed to rectify the

error in the date of birth. Instead, the impugned order was issued,

cancelling the candidature of the petitioner, on the purported ground that

the petitioner had furnished incorrect information in the application form

with regard to the his date of birth.

5. The short question raised in this writ application is, whether the

candidature of the petitioner, ought to have been cancelled on the ground

of an error in typing his date of birth in the online application, after he

had cleared the written test, the interview and the Medical Examination

successfully. It is not in dispute that the difference was only of one day,

and that the petitioner did not derive any benefit whatsoever, by reason of

the difference.

6. There can be no doubt that a candidate applying for a government

job, or for that matter, any job should fill in the application form

carefully. No candidate can claim any vested right to rectification of

arrears in an application. Union Public Service Commission and the State

Public Service Commissions deal with lacs of applications, which are

received pursuant to an advertisement. Such applications are required to

be processed within a short time. A candidate, who is not short-listed

and/or not allowed to participate in the selection process by reason of his

own laches in making careless mistakes, cannot claim any right to be

allowed to participate in the selection process.

7. It is for the body conducting the selection process to decide

whether mistakes should be allowed to be rectified, if so, whether they

should be rectified within any specific time and what are the mistakes

which can be allowed to be rectified and other similar questions.

However, in view of the mandate of Articles 14 to 16 of the Constitution

of India, there should be no discrimination or arbitrariness in deciding

these questions. All candidates applying for the particular post/posts

should be treated equally.

8. This is not a case where the petitioner had not at all been short-

listed. It is not a case where the petitioner has not been allowed to

participate in the selection process. The petitioner had been allowed to

participate and had emerged successful in every stage.

9. It is true that whenever any material discrepancy is noticed in the

application form and/or when any suppression and/or mis-representation

is detected, the candidature might be cancelled even after the application

has been processed and the candidate has been allowed to participate in

the selection process. However, after a candidate has participated in the

selection process and cleared all the stages successfully, his candidature

can only be cancelled, after careful scrutiny of the gravity of the lapse,

and not for trivial omissions or errors.

10. In WP (C) No.5857/2015 (Rakesh Kumar Versus Union of India) a

Division Bench of this court passed an order dated 31 st of August 2015

interalia holding that "this court is of the opinion, especially when the

petitioner has served the Indian Army almost 20 years (19 years in fact),

that the solitary instance of not disclosing a pending prosecution should

not have been the only basis for his discharge; rather the authority should

have looked into the nature of the charge, the findings of the Criminal

Court as well as his past service and then take a decision." In this case,

the respondents have not looked into the trivial nature of the lapse on the

part of the petitioner.

11. In State of Haryana Vs. Dinesh Kumar reported in 2008 (3) SCC

222, the Supreme Court was concerned with a case where the candidature

for appointment was rejected on the ground of suppression of arrest. The

Supreme Court held that "when the question as to what constitutes

arrest" has all along engaged attention of the different High Courts, as

also this Court it may not be altogether unreasonable to expect a layman

to construe that he had never been arrested, on his appearing before the

Court and being granted bail immediately. The position may have been

different, had the person concerned not been released on bail." The

Supreme Court gave the benefit of mistaken impression to the concerned

candidate observing that there was no fully deliberate misrepresentation

and concealment of facts, set aside the judgment of the High Court under

appeal and directed the concerned respondents to take steps to issue

appointment letters to the concerned candidates. In this case it is

nobody's case that there was any deliberate misrepresentation on the part

of the petitioners.

12. The judgment of the Supreme Court in Devendra Kumar Vs. State

of Uttaranchal reported in SCC 2013 (9) 363 is distinguishable in as

much as the same pertains to suppression of an order of punishment for

forgery. This case as observed above, appears to be a case of inadvertent

mistake, where 11th has been typed instead of 10th in respect of the date.

It is reiterated that the petitioner could not have gained anything by

giving the wrong date of birth. Moreover the petitioner was required to

submit his school certificate containing his date of birth.

13. There can be no dispute with the proposition of law in the

judgment of the Supreme Court in T. Jayakumar Vs. A. Gopu and Anr.

reported in (2008) 9 SCC 403, where the Supreme Court held that a

candidate, who had been called for interview could not legitimately

challenge his exclusion from consideration on the ground that his

application had been received beyond time. The judgment has no

application in this case.

14. In Avtar Singh Vs. Union of India reported at (2016) 8 Supreme

Court Cases 471, the Supreme Court in paragraphs 35 and 36 held as

under:

"35. Suppression of "material" information presupposes that what is suppressed that "matters" not every technical or trivial matter. The employer has to act on due consideration of rules/instructions, if any, in exercise of powers in order to cancel candidature or for terminating the services of employee. Though a person who has suppressed the material information cannot claim unfettered right for appointment or continuity in service but he has a right not to be dealt with arbitrarily and exercise of power has to be in reasonable manner with objectivity having due regard to facts of the cases.

36. What yardstick is to be applied has to depend upon the nature of post, higher post would involve more rigorous criteria for all services, not only to uniformed service. For lower posts which are not sensitive, nature of duties, impact of suppression on suitability has to be considered by authorities concerned considering post/nature of duties/services and power has to be exercised on due consideration of various aspects."

15. As observed above, it is not the case of the respondents that the

petitioner derived any advantage by entering the wrong date of birth in

his online and application. There is a difference between a mere

inadvertent error and misrepresentation or suppression. There could be no

intentional misrepresentation as the school certificate was submitted. The

penalisation of cancellation of the candidature on the ground of a

typographical error is arbitrary, unreasonable harsh and disproportionate

to its gravity of the lapse. The writ petition is, therefore, allowed and the

pending application also stands disposed of. The impugned order is set

aside.

Copy of the order be given dasti to counsel for the parties under

the signatures of Court Master.