# Ashutosh Kumar Srivastava & Ors v. State of U.P. & Ors

- **Citation:** (2022) 5 ILRA 1171
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-04-22
- **Case number:** Special Appeal Defective No. 302 of 2020
- **Bench:** Rajesh Bindal, C.J. Piyush Agrawal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ashutosh-kumar-srivastava-ors-v-state-of-u-p-ors-48449
- **Pages:** 5

## Headnote

Civil Law - Constitution of India, 1950 -
Article 226 - Advertisement - for the post of
Assistant Teacher - appellant/petitioners were
applied and selected - in counselling in
respective district - their candidateship were
cancelled on the ground of discrepancies found
in on-line application form while filing up their
marks - challenged in Writ Petitions - out of
which some petitions were dismissed & some
are allowed - which are subjected matter in
present bunch of Special Appeals/petitions -
Order in-persona - Court remitted back the case
of
each
appellants/petitioners
before
the
concern
district
authority
-
for
reexamine/review individually in the light of
referred judgment of Hon'ble Apex Court - with
directions
to
complete
the
said
review
proceeding
within
one
month
and
each
successful candidate in the said proceeding will
be entitled for all consequential benefits. (Para
- 9, 12, 14, 15)

Appeals/petitions are disposed of. (E-11)
1172 INDIAN LAW REPORTS ALLAHABAD SERIES
List of Cases cited: -

## Text

5 All. Ashutosh Kumar Srivastava & Ors. Vs. State of U.P. & Ors.
1171
noted by the Supreme Court between
Section 372 Cr.P.C. 1973 and Section 378
Cr.P.C. 1973. It may also be noticed that
there is also a difference in the definition of
''victim' as provided under Section 2(wa) of
Cr.P.C. 1973 and of the word ''complainant'
as defined under Section 2(d) of Cr.P.C.
1973.

47. It is, therefore, clear that in view of
the amended provision of the Code of Criminal
Procedure, the judgment of the Supreme Court
in case of Khedu Mohton (supra) would not
be applicable now and is, thus, clearly
distinguishable.

48. There is yet another aspect of the
matter. Insofar as the rules of interpretation are
concerned, there is a rule which provides that
''regard to consequences' are also be taken into
consideration while interpreting any statutory
provision. However, as already noticed in the
preceding paragraphs, this rule has no
application when the words are acceptable to
only
one
meaning
and
no
alternate
consideration is reasonably open. There can be
no dispute that the provisions of sub-section (2)
of Section 394 Cr.P.C. 1973 are absolutely
plain in their language and must be given effect
to irrespective of the consequences. Therefore,
the view that in case the appeal filed by the
victim is not abated on the death of the
appellant, the consequences may be serious,
would not be applicable in the present case.

49. We are, therefore, in respectful
agreement with the view taken by the Punjab
and Haryana High Court in Avtar Singh Dhesi
(supra) that the appeal filed under Section 372
Cr.P.C. 1973 would stand abated on the death
of the appellant.

50. Consequently, in view of the
discussions made hereinabove present
appeal stands abated.
----------
(2022)05ILR A1171
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 22.04.2022

BEFORE

THE HON'BLE RAJESH BINDAL, C.J.
THE HON'BLE PIYUSH AGRAWAL, J.

Special Appeal Defective No. 302 of 2020
With
Special Appeal No. 467 of 2021
& With other connected cases

Ashutosh Kumar Srivastava & Ors.
 ...Petitioners
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Sri Seemant Singh

Counsel for the Respondents:
Ms. Archana Singh (Addl. C.S.C.), Sri
Bheem Singh

Civil Law - Constitution of India, 1950 -
Article 226 - Advertisement - for the post of
Assistant Teacher - appellant/petitioners were
applied and selected - in counselling in
respective district - their candidateship were
cancelled on the ground of discrepancies found
in on-line application form while filing up their
marks - challenged in Writ Petitions - out of
which some petitions were dismissed & some
are allowed - which are subjected matter in
present bunch of Special Appeals/petitions -
Order in-persona - Court remitted back the case
of
each
appellants/petitioners
before
the
concern
district
authority
-
for
reexamine/review individually in the light of
referred judgment of Hon'ble Apex Court - with
directions
to
complete
the
said
review
proceeding
within
one
month
and
each
successful candidate in the said proceeding will
be entitled for all consequential benefits. (Para
- 9, 12, 14, 15)

Appeals/petitions are disposed of. (E-11)
1172 INDIAN LAW REPORTS ALLAHABAD SERIES
List of Cases cited: -

1. Jyoti Yadav & anr. Vs The St. of U.P. & ors.
(Writ No. 322 of 2021, dated 08.04.2021,

2. Rahul Kumar Vs St. of U.P. & ors., Writ
Petition (Civil) No. 378 of 2021, dated
29.06.2021

(Delivered by Hon'ble Rajesh Bindal, C.J.
&
Hon'ble Piyush Agrawal, J.)

1. This order will dispose of a
bunch of special appeals and writ petitions.
The issue for consideration before this
Court is regarding rejection of claim of the
candidates, who had applied for the post of
Assistant Teacher in Primary School. The
advertisement for the same was issued on
December 5, 2018 and the select list was
notified on May 12, 2020. The candidates
were directed to report at the respective
districts for which their selection was
made. During the course of counselling,
their certificates were to be checked. In the
said process, the candidature of number of
candidates was rejected as it was found that
there were discrepancies in the marks filled
up by them in on-line applications as
compared to the marks mentioned in the
mark-sheets produced by them during
counselling.

2. Some of the writ petitions were
dismissed by the learned Single Judge
against which the candidates are in appeals
whereas in some cases, the writ petitions
were allowed against which the Basic
Education Board (hereinafter referred to as
'the Board') is in appeal.

3. In three special appeals bearing
Special Appeal Nos. 98, 835 and 845 of
2022, interim orders passed by the learned
Single Judge in favour of the candidates in
the writ petition bearing Writ-A Nos.
15350, 8525 and 6839 of 2021, are under
challenge. As delay in disposal of the writ
petitions would further entail delay in
conclusion of the process of selection and
appointment, the aforesaid writ petitions
were directed to be listed before this Court
along with aforesaid appeals and the
argument of the same have also been heard.
Another writ petition bearing Writ-A No.
16905 of 2021 is already tagged with the
bunch as identical questions are involved in
the same.

4. The argument raised by learned
counsel for the candidates is that, in terms
of Government Order dated March 5, 2021,
the candidature of a candidate is not
required to be cancelled in case the marks
filled up by him/her in an on-line
application form is at a disadvantageous
position, while preparing the merit list. In
the case in hand, as per the marks filled by
the candidates in their on-line applications,
the percentage of marks was shown less as
compared to the actual marks secured by
them.

5. This issue was considered by
Hon'ble the Supreme Court in Writ Petition
(Civil) No. 322 of 2021 titled as Jyoti
Yadav and another vs. The State of Uttar
Pradesh and others, decided on April 8,
2021 and in Writ Petition (Civil) No. 378
of 2021 titled as Rahul Kumar vs. State of
Uttar Pradesh and others, decided on
June 29, 2021 wherein the validity of the
aforesaid
Government
Order
dated
05.03.2021 was upheld and it was opined
therein that in case the marks filled up by
the candidates, cause disadvantage to them
as compared to the actual marks obtained,
the candidature of such candidates is not to
be cancelled. Hence the cases of such
candidates, who are before this Court,
5 All. Ashutosh Kumar Srivastava & Ors. Vs. State of U.P. & Ors.
1173
either in the writ petitions or in appeals,
deserve
to
be
reconsidered
by
the
competent authority.

6. On the other hand, the argument
raised by learned counsel for the Board is
that if there is any error in filling up the
form by a candidate, he cannot be allowed
to make any correction. Clause 2 of the
Government
Order
dated
05.03.2021,
clearly provides that in such a situation, the
candidature is required to be cancelled. The
candidate could be given benefit only in
case there was error committed by the
Board or University. It is further submitted
that selection process is already complete
and appointments have been made.

7. Heard learned counsel for the
parties.

8. In the bunch of appeals and writ
petitions, we are not proposing to enter into
the facts of each and every case as, after
hearing learned counsel for the parties, we
find that there has not been proper
appreciation of facts by the competent
authority while rejecting the candidature of
the candidates on account of which they
have approached this Court. The State itself
found that there were some errors as a
result whereof Government Order dated
3.5.2021 was issued. The validity thereof
was challenged by some of the candidates
before Hon'ble the Supreme Court in the
case of Joyti Yadav and another (supra).
The relevant clause thereof 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 the certificate/marks-sheet available
with them and had mentioned more marks
but the marks were subsequently changed
after scrutiny/reevaluation/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/marks-sheet 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."

9. In the aforesaid case, while
upholding the validity of the aforesaid
Government Order, it was opined that
wherever the mistakes committed by the
candidates purportedly gave additional
marks or weightage greater that what they
actually
deserve,
according
to
the
Communication dated 05.03.2021, their
candidature should be rejected, however,
wherever mistakes committed by the
candidates
actually
put
them
at
a
disadvantageous position against their
original entitlement or the variation could
1174 INDIAN LAW REPORTS ALLAHABAD SERIES
be one attributable to the University or
issuing authority, an exception was made.
Hon'ble the Supreme Court in respect of the
aforesaid two categories in the Government
Order dated 05.03.2021 did not find
anything to be irrational. Subsequently, the
issue was examined in the case of Rahul
Kumar (supra) with reference to the same
selection process. While referring to the
Government Orders dated 04.12.2020 and
05.03.2021, it was opined that wherever a
candidate
had
put
himself
at
a
disadvantageous position, his candidature is
not to be cancelled but if the candidate had
been placed at an advantageous position
which is beyond his right to claim, his
candidature is to be cancelled. Relevant
paragraph nos. 7, 8 and 9 of the aforesaid
judgment read as under:

"7.
We
need
not
consider
individual fact situation as the reading of
the G.O. and the Circular as stated above
is quite clear that wherever a candidate
had put himself in a disadvantaged position
as stated above, his candidature shall not
be cancelled but will be reckoned with such
disadvantage as projected; but if the
candidate had projected an advantaged
position which was beyond his rightful due
or entitlement, his candidature will stand
cancelled. The rigour of the G.O. and the
Circular is clear that wherever undue
advantage can enure to the candidate if the
discrepancy
were
to
go
unnoticed,
regardless whether the percentage of
advantage was greater or lesser, the
candidature of such candidate must stand
cancelled.
However,
wherever
the
candidate was not claiming any advantage
and as a matter of fact, had put himself in a
disadvantaged position, his candidature
will not stand cancelled but the candidate
will have to remain satisfied with what was
quoted or projected in the application form.

These petitions are, therefore,
disposed of in the light of what is stated
above.

8. It must however be stated
here that the authorities are not strictly
following the intent of the G.O. and the
Circular. For example, the Office Order
dated 28.03.2021 issued by the Basic
Teacher
Education
Officer,
District
Hardoi,
shows
cancellation
of
the
candidature of one Raghav Sharan Singh
at Serial No.4, though the projection of
marks by way of mistake by said
candidate was to his disadvantage.
Logically, said candidate would be
entitled
to
have
his
candidature
considered
and
reckoned
at
the
disadvantaged level. The record shows
that even with such disadvantage, the
candidate was entitled to be selected.

9.
We
have
given
this
illustration only by way of an example.
The authorities shall do well to consider
every such order issued by them and
cause
appropriate
corrections
or
modifications in the light of conclusions
stated above. "

10. From the facts of the bunch of
cases listed before us and as has been
pointed by some of the counsels, it is
evident that the issue has not been
examined by the competent authority in
terms of the observations made by the
Supreme Court in the aforesaid two
judgments which relate to the selection
process in question. In fact, in some of the
cases, the rejection of the candidature, is
prior to the aforesaid judgments.

11. As we find that the issues have
not been examined by the competent
authority in the light of the observations
made by the Supreme Court in the
aforesaid
judgments
interpreting
the
5 All. Chandrabhan Singh Yadav Vs. State of U.P.
1175
Government Orders dated 04.12.2020 and
05.03.2021, the matter needs to be reexamined.

12.
While
setting
aside
the
impugned orders rejecting the candidature
of the candidates on account of the error
committed by them, we remit the matter to
the authority of the district concerned for
re-examination thereof in light of the
aforesaid judgment of the Supreme Court
and to take a final decision thereon.

13. It is made clear that candidates,
whose names do not find place in the select
list dated 12.5.2020, will not get any
benefit with the change of marks as their
merit position will not be changed for the
reason that in case this is allowed to happen
at this stage, it will open the entire selection
process which is not the spirit of the order
passed by this Court.

14. The entire process shall be
completed by the competent authority
within a period of one month from the date
of receipt of a copy of this order.

15. It is further directed that in case
any candidate is found entitled for
appointment and is offered appointment on
review of his/her case in terms of the
aforesaid directions, he/she shall get all the
benefits from the date, he/she joins the
service

16. The order passed in this bunch of
appeals/writ petitions may not be treated to
be an order in rem rather it is an order in
personam limited to the candidates before
the Court who were vigilant enough to
place their griev
ance before the Court.
----------
(2022)05ILR A1175
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 09.05.2022

BEFORE

THE HON'BLE SHEKHAR KUMAR YADAV, J.

Criminal Misc. Bail Application 34421 of 2021
connected with
Criminal Misc. Bail Applications no. 39717 of
2021 & 55230 of 2021

Chandrabhan Singh Yadav ...Applicant
Versus
State of U.P. ...Opp. Party

Counsel for the Applicant:
Sri Varad Nath

Counsel for the Respondents:
G.A., Sri Rahul Kumar Gupta, Mrs. Archana
Singh, Sri Sushil Kumar Pal

(i) Criminal Law - Criminal Procedure
Code,1973 - Sections 161 & 439 - Indian
Penal Code,1860 - Sections 120-B, 406, 19
& 420 - Information Technology Act, 2008
- Sections 66, 66-(C) & 66-(D) - Application
for Bail - allegation of Cyber Crime - online
fraud of theft of money about 17 lacks from
victim's bank account - Admission of accused
persons - they are habitual & trained to commit
online fraud with innocent public - deserves no
mercy from court - hence bail application
rejected. (Para - 22)

(ii) Criminal Law - Criminal Procedure
Code, 1973 - Sections 161 & 439 - Indian
Penal Code,1860 - Sections 120-B, 406, 19
& 420 - Information Technology Act, 2008
- Sections 66, 66-(C) & 66-(D) - Cyber crime
is become very serious problem in our society -
court can pass directions in the public interest
by exceeding its jurisdiction - Government and
its machineries & departments (like Bank,
Telecom companies, Reserve Bank of India,
investigation agencies) should maintain trust of
public & account holders - it's time to take strict
steps against the cyber crime - Government
should fix the liabilities also upon Banks to