Ramkesh vs State Of Rajasthan ...
2023 Latest Caselaw 7713 Raj

[2023:RJ-JD:31888]

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Civil Writ Petition No. 3029/2019

Ramkesh S/o Shri Ishwar, Aged About 26 Years, R/o VPO Dhamtan Sahib, Tehsil Narwara, District Jind (Haryana).

----Petitioner Versus

1. State Of Rajasthan, Through Its Secretary, Department Of Rural Development And Panchayati Raj, Govt. Of Rajasthan, Secretariat, Jaipur.

2. The Director, Elementary Education, Rajasthan, Bikaner.

3. The Zila Parishad, Barmer, Through Its Chief Executive Officer.

                                                                    ----Respondents


For Petitioner(s)             :    Mr. Inderjeet Yadav
For Respondent(s)             :    Mr. Pankaj Sharma, AAG assisted with
                                   Mr. Deepak Chandak



                        JUSTICE DINESH MEHTA

                                        Order

27/09/2023

1. By way of present writ petition, the petitioner has challenged

the list issued by the respondents providing posting to the

candidates who have been selected for the appointment to the

post of Teacher Grade - III (Level I).

2. The facts appertain are that the respondents had issued an

advertisement dated 12.04.2018 for filling up the post of Teacher

Grade - III (Level I).

3. The petitioner being an eligible candidate and desirous of

appointment submitted an online application form on 27.04.2018

as an 'Unreserved and General category' candidate.

[2023:RJ-JD:31888] (2 of 7) [CW-3029/2019]

4. Due to inadvertence or otherwise, in the column meant for

'Specially Abled Category', so also in the column meant for 'Apply

for Special Education', the petitioner had indicated - 'Hearing

Impairment'.

5. The petitioner had secured more marks than the cut - off of

the General category candidates, hence in the result, which was

declared on 01.06.2018, he was shown to be selected in 'Hearing

Impaired' category.

6. Thereafter, in the list of candidates selected for document

verification published by the respondents on 08.06.2018, the

petitioner was allotted District Barmer.

7. The petitioner appeared for document verification,

whereafter, when the list of candidates appointed was issued, he

did not find his name, for which, the petitioner has approached

this Court.

8. Mr. Yadav, learned counsel for the petitioner invited Court's

attention towards the copy of the application form and highlighted

that so far as space given for the 'category' is concerned, the

petitioner had indisputably written 'Unreserved' and it was due to

confusion or misconception, he had written 'hearing impairment'

in the column meant for 'Specially Abled Category'.

9. Learned counsel emphasised that the petitioner was

conscious of this fact that he was not having any impairment or

disability and also that he had to compete for the remaining seats

or seats left for 'Unreserved Category'. Mr. Yadav submitted that

the petitioner had indicated 'Hearing Impairment' in the column

under a mistaken belief that in such column, he was supposed to

[2023:RJ-JD:31888] (3 of 7) [CW-3029/2019]

write about the nature of special education. It was so felt

because, the petitioner had studied and got training for teaching

specially abled children of Hearing Impaired category, added Mr.

Yadav.

10. Learned counsel submitted that when the lists were issued

on 01.06.2018 and 08.06.2018, the petitioner did not realize that

his selection has been made as a 'PH category' candidate. And

when he appeared for document verification, obviously he could

not and did not produce any disability certificate, for which his

candidature seems to have been rejected.

11. Learned counsel argued that the purported error in filling up

the application form was completely a bonafide mistake in

understanding the details to be filled in the online application

form, as he belong to Haryana and had no prior experience of

filling form in Rajasthan. He argued that an inadvertent error

cannot deprive the petitioner of his right of getting employment,

when he is otherwise a meritorious candidate.

12. Mr. Pankaj Sharma, learned Additional Advocate General

appearing on behalf of the respondent - State submitted that true

it is, that the petitioner had filled in 'Unreserved' in the column

meant for the category, but such column was designed only for

the caste based reservation.

13. He submitted that petitioner ought to have been more

vigilant and should not have shown himself to be a hearing

impaired candidate by reflecting 'Hearing Impairment' in the

column meant for 'Specially Abled Category'.

[2023:RJ-JD:31888] (4 of 7) [CW-3029/2019]

14. It was further submitted by Mr. Sharma that the petitioner's

claim made in the writ petition amounts to change in the category

which is impermissible in the eye of law, more particularly, when

the result has been declared and a select list has been issued.

15. Learned counsel further argued that the petitioner ought to

have noticed that the list dated 01.06.2018 (Annexure.5) which

clearly indicated that the petitioner was selected as a PH category

(Hearing Impaired) candidate. He added that similar was the

position in list of allotment of districts dated 08.06.2018, issued

by the respondents.

16. Learned counsel argued that a candidate who has not filled

up the form carefully and has omitted to see the select list

carefully cannot be granted indulgence at this stage, as any

unwarranted sympathy would result in taking away right of

another meritorious person who has been vigilant and careful in

filling up the application form.

17. Learned Additional Advocate General relied upon the

following judgments in support of his stand:-

(i) Rajasthan Public Service Commission Vs. Yogita Yaduvanshi : S.B. Civil Writ Petition No.8900/2019, decided on 19.03.2021;

(ii) Sonal Tyagi Vs. State of Rajasthan & Ors. : D.B. Civil Writ Petition No.7840/2019, decided on 12.07.2019;

(iii) Laxmi Lata Barmaniya Vs. State of Rajasthan & Anr. : S.B. Civil Writ Petition No.3720/2022, decided on 21.03.2022.

[2023:RJ-JD:31888] (5 of 7) [CW-3029/2019]

18. Heard learned counsel for the parties and perused the

material available on record.

19. So far as the judgments cited by Mr. Sharma, learned

Additional Advocate General are concerned, the same are clearly

distinguishable on facts, inasmuch as, in all the cases, the

petitioners therein had prayed for correction in their application

forms or they have prayed for consideration of their case in caste

or class other than the one qua which the online application form

was submitted.

20. The law is well settled that a candidate cannot change or

pray for direction in his category so far as caste is concerned,

more particularly, when the result has been declared. So is the

position, when a candidate prays for change in his subject,

because the declaration of result can change the entire dynamics

and a person who has not been selected in the applied category or

subject in which he had applied, can perceive or find an

opportunity in other category or subject. But, in the instant case,

as has been noticed hereinabove, the petitioner has not prayed for

any change in his caste; he has prayed for correction or

consideration of his candidature as a General category candidate

and not as a PH category candidate.

21. So far as change of caste or subject is concerned, a

candidate can have dual or more options and after the result is

declared, a change can provide him or her better fortune but a

candidate of PH category cannot find better opportunity nor can

an otherwise healthy person can get any advantage by applying as

[2023:RJ-JD:31888] (6 of 7) [CW-3029/2019]

PH category candidate because he has to establish more than

40% disability in order to secure appointment.

22. This Court is of the view that the petitioner's mistake in

filling up the 'Hearing Impairment' in the column meant for

'Specially Abled Category' was a bonafide mistake. And the same

was likely to occur considering that the petitioner wanted to apply

for special education for Hearing Impaired candidates and because

the petitioner had studied and was trained to instruct Hearing

Impaired candidates.

23. Argument of Mr. Yadav that, having filled in 'Unreserved'

category, the petitioner had staked his claim as a General

category candidate appears to be attractive, but according to this

Court, the column in which expression 'Unreserved' was filled in

by the petitioner, was meant for caste based reservation or

vertical reservation such as Scheduled Caste, Scheduled Tribe and

Other Backward Class (Non-creamy layer).

24. Be that as it may.

25. Having regard to overall facts and circumstances of the

present case, this Court is persuaded to grant indulgence to the

petitioner for his bonafide mistake, inasmuch as by inscribing

Hearing Impairment in the space meant for 'Specially Abled'

category, the petitioner was not placed in any advantageous

position. A candidate would certainly know that if he applied

under the category of Physically Handicapped (Hearing Impaired),

he has to prove that he is having more than 40% disability in his

hearing.

[2023:RJ-JD:31888] (7 of 7) [CW-3029/2019]

26. It is noteworthy that on 27.02.2019, finding substance in

petitioner's contention, a co-ordinate Bench of this Court had

passed a detailed interim order on 27.02.2019.

27. One post in 'Special Education - Hearing Impaired' category

has been kept vacant by virtue of the aforesaid interim order. In

the opinion of this Court, if the Court does not adopt sympathetic

view or the State does not adopt pragmatic approach, the seat

which has been kept vacant would lapse and nobody else can be

accommodated against such unfilled seat.

28. In light of the discussion foregoing, the writ petition is

allowed; the respondents are directed to consider petitioner's

candidature as an 'Unreserved/General' category candidate (and

not in Physically Handicapped candidate) for the post of Teacher

Grade - III (Level I) Special Education - Hearing Impairment and

issue an order of appointment if he is meritorious in 'Unreserved'

category and is otherwise eligible.

29. As the petitioner himself lacked due diligence, he shall not be

entitled for any benefits monetary or notional for the past period -

petitioner's date of appointment shall be reckoned as 1st

December, 2023 or the date he joins, whichever is earlier.

30. Needful be done within a period of 8 weeks from today.

31. The stay application also stands disposed of accordingly.

(DINESH MEHTA),J 79-akansha/Ramesh/-

Powered by TCPDF (www.tcpdf.org)