# Chandra Shekhar Dwivedi v. State of U.P. & Ors

- **Citation:** (2022) 3 ILRA 554
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-03-14
- **Case number:** Writ A No. 1074 of 2022
- **Bench:** Rajan Roy
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/chandra-shekhar-dwivedi-v-state-of-u-p-ors-48215
- **Pages:** 11

## Headnote

Law
-
Education
-
Appointment/Selection
-
If
by
the
discrepancy committed while filling up
online application form the candidate
concerned
puts
himself
in
a
disadvantageous position, his candidature
shall not be cancelled but will be reckoned
with such disadvantage as projected. But if
the candidate had projected an advantageous
position which was beyond his rightful due or
entitlement his candidature will stand cancelled.
(Para 16, 17, 18)

Wherever the mistakes committed by the
candidates purportedly gave additional marks or
weightage greater than what they actually
deserve, according to the communication dated
05.03.2021, their candidature would stand
rejected.
However,
wherever
mistakes
committed by the candidates actually put them
at the disadvantage as against their original
entitlement or the variation could be one
attributable
to
the
University
or
issuing
authority, an exception was made by said
communication, the reason for these two
categories of candidates differently cannot thus
be called irrational.

In the present case, it is apparent that the
petitioner herein falls in the category of those
candidates who had actually put themselves at a
disadvantaged position and therefore, the case
of the petitioner is covered for grant of relief.
(Para 20)

Writ petition allowed. (E-4)

Precedent followed:

## Text

554 INDIAN LAW REPORTS ALLAHABAD SERIES
from one source or another, for direct
recruitment, may have become ineligible
for various reasons such as exceeding
maximum age or having retired etc. and
whether in such a scenario
if the
recruitment process is not completed within
reasonable period of 2 or 3 years, should
not the advertisement be cancelled and
vacant posts be re-advertised so that others
who may have become eligible for
consideration
from
either
source
of
recruitment in the interregnum, may also
participate therein ? Appropriate measures
should be taken in this regard for the future.

65. Accordingly, subject to the above,
all the writ petitions are dismissed.
----------
(2022)03ILR A554
APPELLATE JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 14.03.2022

BEFORE

THE HON'BLE RAJAN ROY, J.

Writ A No. 1074 of 2022

Chandra Shekhar Dwivedi ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Sharad Pathak, Sri Piyush Pathak

Counsel for the Respondents:
C.S.C., Sri Ran Vijay Singh, Sri Shivam
Sharma

A.
Service
Law
-
Education
-
Appointment/Selection
-
If
by
the
discrepancy committed while filling up
online application form the candidate
concerned
puts
himself
in
a
disadvantageous position, his candidature
shall not be cancelled but will be reckoned
with such disadvantage as projected. But if
the candidate had projected an advantageous
position which was beyond his rightful due or
entitlement his candidature will stand cancelled.
(Para 16, 17, 18)

Wherever the mistakes committed by the
candidates purportedly gave additional marks or
weightage greater than what they actually
deserve, according to the communication dated
05.03.2021, their candidature would stand
rejected.
However,
wherever
mistakes
committed by the candidates actually put them
at the disadvantage as against their original
entitlement or the variation could be one
attributable
to
the
University
or
issuing
authority, an exception was made by said
communication, the reason for these two
categories of candidates differently cannot thus
be called irrational.

In the present case, it is apparent that the
petitioner herein falls in the category of those
candidates who had actually put themselves at a
disadvantaged position and therefore, the case
of the petitioner is covered for grant of relief.
(Para 20)

Writ petition allowed. (E-4)

Precedent followed:

1. Jyoti Yadav & anr. Vs St. of U.P. & ors., Writ
Petition (Civil) No. 322 of 2021 (Para 10, 11)

2. Rahul Kumar Vs St. of U.P. & ors., Writ
Petition(s) (Civil) No(s). 378 of 2021 (Para 10)

3. Secy. Basic Edu. Board & ors. Vs Jubeda
Bano, Special Appeal No. 69 of 2022 (Para 16)

Precedent distinguished:

1. Richa Tripathi Vs St. of U.P. & ors., Special
Appeal Defective No. 716 of 2021 (Para 14)

Present petition challenges orders dated
19.06.2021 and 23.11.2021, passed by
Secretary, Basic Education Board.

(Delivered by Hon'ble Rajan Roy, J.)

1. Heard.
3 All. Chandra Shekhar Dwivedi Vs. State of U.P. & Ors.
555

2. The petitioner who was selected
and appointed as Assistant Teacher in a
basic school has challenged the order dated
19.06.2021 by which his selection was
reviewed and the same was cancelled
leading to passing of an order of the same
date
i.e.
19.06.2021,
cancelling
his
appointment, as also the subsequent order
dated 23.11.2021 passed by Secretary,
Basic
Education
Board
on
the
representation
of
the
petitioner
in
pursuance to judgment of this Court dated
27.07.2021 passed in his writ petition filed
earlier.

3. The facts of the case in brief are
that the petitioner applied for such selection
and appointment as Assistant Teacher in a
basic school in 2019. He was selected and
called for counseling. During counseling, it
was found that there was some discrepancy
in the marks mentioned by him in his
application form pertaining to B.Ed degree
and those mentioned in his original
marksheet. Accordingly, the appointment
letter was not issued. On 04.12.2020, a
Government Order was issued as there
were
several
candidates
who
had
incorrectly filled-up the form, some of
whom had mentioned lesser marks than
what they had secured actually just as in
the case of the petitioner. Accordingly, a
procedure was prescribed by the said
Government Order for dealing with such
cases. Based on the said Government Order
dated 04.12.2020 which, in fact, has been
taken into consideration by Hon'ble the
Supreme Court in Writ Petition (Civil)
Nos.1308 of 2020 'Abhinav Kardam vs.
State of U.P. & Ors.' where the Apex
Court directed the concerned authorities to
place the cases of the petitioners therein for
consideration in terms of the Office
Memorandum
dated
04.12.2020
and
10.12.2020, the District Level Committee
scrutinized cases of all such candidates
including the petitioner and opined that the
petitioner
is
entitled
to
be
offered
appointment. Accordingly,
appointment
letter was issued to the petitioner on
27.01.2021.

4. At this stage, it is not out of place
to mention as to what was the discrepancy
in the marks of the petitioner. Page no.82
of the petition is the marksheet of B.Ed
pertaining to the petitioner and according to
it, he had secured total marks of 757 out of
1100 in the written examination. In
addition to it, he had secured 85 out of 100
in practical. However, on a bare perusal of
the marksheet, it is apparent that the marks
secured by him in practical examination
were
referred
as
'Final
Practice
of
Teaching' and these marks were mentioned
below the grand total. According to
petitioner's counsel, this confused the
petitioner and accordingly, while filling-up
the form, he mentioned the marks obtained
in written examination as 585 out of 900
and in the practical examination 172 out of
200. This he did by adding up certain
marks which had been given out of 100 in
the marksheet. The total marks mentioned
was 757 out of 1100 obviously as the
marksheet mentioned these marks as the
grand total. The petitioner did not realize
that marks for the practical examination
were separate and in fact, he had secured
85 out of 100 and these 85 marks should
have been added by him to 757 marks as he
had actually secured 842 marks. But he
mentioned only 757 marks as the grand
total based on the entry in the marksheet.

5. Considering the very format of the
marksheet, which was quite confusing, the
University issued a notice dated 04.12.2020
(Annexure-11) that the written examination
comprised of 1100 marks whereas the
556 INDIAN LAW REPORTS ALLAHABAD SERIES
practical examination was of 100 marks
and
directed
the
System
Manager,
Computer Center to upload the same on the
website of the University and a direction
was also given to the Deputy Registrar,
Public Information to dispose of the
matters in the light of the aforesaid.

6. So, what comes out is that it is not
a case where the petitioner had mentioned
more marks than he had actually obtained.
In fact, he had mentioned 85 marks less
than what he had actually obtained because
of the aforesaid confusion. Therefore,
evidently no advantage was claimed
deliberately or otherwise by the petitioner.
In fact, he put himself in a disadvantageous
position.

7. This is why in consideration of
Government Order dated 04.12.2020, the
District Level Committee took a decision to
offer appointment to the petitioner.

8. At this stage, it is not out of place
to mention that subsequently another
Government Order dated 05.03.2021 was
issued which is also on record. The case of
the petitioner is that the said Government
Order
permitted
ignoring
such
discrepancies, if documentary basis of the
same could be shown by the candidate. He
says that there was documentary basis in
the form of the format of the marksheet and
the clarification issued by the University
itself which was proof enough to show that
the format of the marksheet was quite
confusing and several such issues had
arisen leading to a situation where the
University had to direct its officials to
upload such clarification and dispose of the
grievances accordingly.

9. However, after issuance of
Government Order dated 05.03.2021, the
matter of the petitioner was reconsidered
along with others and ultimately, in view of
the discrepancies already discussed, the
petitioner's appointment/ selection was
recommended for cancellation by the
District Level Committee. Consequent to
which,
the
Basic
Education
Officer
cancelled the appointment of the petitioner.
Both these events happened on 19.06.2021
and are impugned before this Court.

10. The petitioner being aggrieved
approached this Court vide Writ Petition
No.13814 (S/S) of 2021 'Chandra Shekhar
Dwivedi vs. State of U.P. & Ors.' wherein
the contentions of rival parties were
considered and the Single Judge Bench of
this Court also noticed the decision of
Hon'ble
the
Supreme
Court
dated
08.04.2021 rendered in 'Jyoti Yadav and
another vs. State of U.P. & others' Writ
Petition (Civil) No.322 of 2021 as also
another decision of Hon'ble the Supreme
Court dated 26.06.2021 rendered in 'Rahul
Kumar vs. State of U.P. & others' Writ
Petition(s) (Civil) No(s).378 of 2021. On a
statement being made by learned counsel
for the Board that the Secretary of Basic
Education Board, Prayagraj would look
into the representation of the petitioner, the
matter was disposed of on 27.07.2021 with
these observations:-

"On the other hand, Sri Ran Vijay
Singh, learned Additional Chief Standing
Counsel as well as learned counsel for the
Secretary, Board of Basic Education,
Prayagraj
has
submitted
that
this
eventuality may very well be looked into by
the Secretary, Board of Basic Education,
Prayagraj, therefore, the petitioner may
prefer a representation to such authority
taking all pleas and grounds and the
directions may be issued, in the interest of
justice, for disposal of such representation.
3 All. Chandra Shekhar Dwivedi Vs. State of U.P. & Ors.
557

This
is
a
fair
proposition,
therefore, I hereby dispose of this writ
petition finally permitting the petitioner to
prefer a fresh representation to the
Secretary, Board of Basic Education,
Prayagraj taking all pleas and grounds
which are available with him enclosing
therewith the copies of all the relevant
documents
which
are
necessary
for
disposal of the representation within a
period of fifteen days and if such
representation is preferred by the petitioner
within the aforesaid stipulated time, the
Secretary, Board of Basic Education,
Prayagraj shall consider and decide the
representation of the petitioner strictly in
accordance with law by passing a speaking
and reasoned order, with expedition,
preferably within a period of three weeks
from the date of presentation of a certified /
computerized copy of this order along with
representation and the decision thereof be
intimated to the petitioner forthwith.

It is made clear that this is a case
of appointment and the petitioner appears
to be a meritorious candidate, therefore,
the decision shall be taken by the
Competent Authority in view of the
directions being issued by the Hon'ble Apex
Court in the aforesaid two judgments.

It has been informed by Sri
Pathak, learned counsel for the petitioner
that consequent to the impugned order
dated 19.06.2021, the authority concerned
has issued recovery order against the
petitioner, which has been received by the
petitioner
Yesterday
i.e.
26.07.2021,
therefore, he could not bring that order
before the Court. He has requested that the
recovery order may be kept in abeyance till
appropriate decision is taken by the
Secretary, Board of Basic Education,
Prayagraj.

Considering the aforesaid request
of Sri Pathak, learned counsel for the
petitioner and consenting with the learned
counsel for the opposite parties on that
point, I hereby direct that no coercive
action shall be taken against the petitioner
till the appropriate decision is taken by the
Secretary, Board of Basic Education,
Prayagraj in terms of direction being
issued
by
this
Court.
While
taking
appropriate decision in terms of order of
this Court, the impugned order dated
19.06.2021 shall be ignored.

In view of the above, the writ
petition is disposed of finally.

Order Date :- 27.7.2021"

11. However, in pursuance of the
aforesaid, on a consideration of the matter,
the representation of the petitioner has been
rejected on 23.11.2021. The Secretary of
the Board has referred to various decisions
of this Court and also the decisions of
Hon'ble the Supreme Court rendered in the
case of Jyoti Yadav (supra). However, he
has quoted only three lines of the said
judgment and has not referred to what has
been said by Hon'ble the Supreme Court in
the body of the judgment which shall be
considered hereinafter. It has been opined
in the impugned order that the petitioner
had
mentioned
less
marks
while
mentioning the grand total marks obtained
by him in the training examination whereas
he had mentioned higher marks in the
practical examination. It has also been
referred that a declaration was made by the
petitioner in the application form itself that
he had compared the entries in the
application form with original documents
and had found it to be correct and that he
would not be entitled to modify the entries
subsequently.
558 INDIAN LAW REPORTS ALLAHABAD SERIES

12. The petitioner worked for about
three months and was paid salary before
cancellation of his appointment.

13. It is not a case where at the stage
of scrutiny of application or counseling
itself, the candidature of the petitioner was
rejected on account of the discrepancies
noticed hereinabove but a case where the
discrepancies were noticed, a Government
Order dated 04.12.2020 was issued as
already referred hereinabove, in the light of
which
the
District
Level
Committee
considered the case of the petitioner along
with similarly situated persons as the
number of such candidates was very large
and after such consideration with due and
proper application of mind, the District
Level Committee was of the opinion that
the
petitioner
should
be
offered
appointment, obviously because, he had not
gained anything by mentioning different
marks. It is a case where after having
worked for about five months and payment
of three months' salary to him, the
appointment has been cancelled on the
aforesaid ground.

14. Sri Ran Vijay Singh, learned
counsel for the Board has invited the
attention of the Court to a Division Bench
judgment of this Court rendered in
Special Appeal Defective No.716 of 2021
[Richa Tripathi vs. State of U.P. and
others] arising out of Writ Petition
No.7746 of 2021 decided on 27.10.2021.
He has also referred to a declaration
given by the petitioner in his form as
contained at page no.73, according to
which, if on inquiry, before or after
examination/ selection any detail given
by the candidate is found to be false or
incorrect then the concerned authority
would
be
entitled
to
cancel
the
candidature and also to initiate legal
proceedings. If any information is found
to be incorrect then the candidate would
be entirely responsible for the same. The
details as mentioned in the registration
form had been compared with the
originals and found to be correct and was
therefore, agreeable to submitting the
same finally. After submission of such
form finally he would not have any right
to modify the same. Based on this, he
contended that the impugned order is not
liable to be interfered.

15. At this stage itself, it needs to be
mentioned even at the cost of repetition
that the petitioner's candidature was not
rejected in terms of the
aforesaid
declaration at the stage of counseling or
even at any stage prior to offering him
appointment. In fact, to the contrary, in
pursuance to the Government Order dated
04.12.2020, which would, in the facts of
the case, supersede such declaration, by
the conduct of the opposite parties
themselves
who
issued
the
said
Government Order, the petitioner's case
was liable to be considered in the light
thereof along with others and the same
was in fact considered and then a
conscious decision was taken to offer him
appointment for obvious reasons which
have already been mentioned.

16. Learned counsel for the petitioner
has relied upon another Division Bench
decision rendered recently on 08.03.2022 in
Special Appeal No.69 of 2022 'Secy. Basic
Edu. Board & Ors. vs. Jubeda Bano'
wherien the judgment of Richa Tripathi
(supra) was also cited and the said
Division Bench on a consideration of law
on the subject including two Supreme
Court's decision, one in the case of Jyoti
Yadav (supra) which was also considered
in Richa Tripathi (supra) and another
3 All. Chandra Shekhar Dwivedi Vs. State of U.P. & Ors.
559
subsequent decision in the case of Rahul
Kumar (supra), clarified the law as
under:-

"In our opinion, when we examine
the Government Orders dated 05.03.2021
and 04.12.2020 what we find is that the said
Government Orders have been issued with a
purpose. The purpose, in our view, is that no
candidate should be permitted to rectify any
mistake committed by him/her while filling up
online application form so as to avoid have
ultimate impact on smooth conduct of the
selection
process
and
to
avoid
any
alternation or change in the inter se merit of
the candidates which would lead to any
alternation/change in the final merit/select
list.
If
a
candidate
furnishes
some
information in his/her online application
form which, as is a present case, does not put
him/her in any advantaged situation, in our
considered opinion, such effors are not liable
to be treated as the basis for rejecting the
candidature of such a candidate.

In a case where a candidate
indicates more marks than he/she has
actually obtained, he/she puts himself/herself
in an advantaged position. Similarly in a case
where a candidate indicates less marks then
total marks prescribed in an examination
conducted by the Examining Body then in this
situation
as
well
the
candidate
puts
himself/herself in an advantaged position. In
both these situations, if the application form
contains such mistake, it will not only impede
the smooth selection process but such mistake
will have the potential of altering or
changing the inter se merit of the candidates
as also the entire final merit/select list.

In our opinion, the guidelines
issued by means of the Government Order
dated 01.12.2018 and the provisions
contained in the Government Orders dated
05.03.2021 and 04.12.2020 are meant to
check and prevent any such situation where
the selection process gets impeded or such
mistake has the potential of altering interse merit of the candidate as also the final
list/select list. The judgment rendered by
Hon'ble Supreme Court in the case of
Rahul Kumar (supra) is very relevant to be
referred to at this juncture itself. Hon'ble
Supreme Court in the said case of Rahul
Kumar (supra) has clearly considered point
no.2 of the Government Order dated
04.12.2020. The reference of the said
Government Order has been made in para
3 of the said judgment which is extracted
herein below:

"
Government
Order
dated
04.12.2020 (the G.O., for short) dealt with
as many as 21 points of discrepancies
which could possibly have crept in while
filling up online application forms by the
candidates. Point No.2 of said G.O. is of
some relevance and is being quoted
hereunder for facility.

Point No.2: Discrepancy in the
Marks obtained and Total marks of High
School, Intermediate, Graduation, Training
and to the total marks and marks obtained
received from the excel sheet of the
candidate. In relation to the above type of
discrepancies following action to be taken
has been decided."

Their
Lordships
of
Hon'ble
Supreme Court have clearly interpreted the
said provision contained in point no.2 of
the Government Order dated 04.12.2020 in
para 7 of the said judgment which is also
extracted hereunder;

"We need not consider individual
fact situation as the reading of the G.O.
and the Circular as stated above is quite
560 INDIAN LAW REPORTS ALLAHABAD SERIES
clear that wherever a candidate had put
himself in a disadvantaged oposition 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 ensure 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."

From the aforequoted portion of
the judgment in the case of Rahul Kumar
(supra) rendered by Hon'ble Supreme
Court, it is abundantly manifest that rigor
of
the
Government
Order
is
clear
according to which whenever any undue
advantage ensues to the candidate on
account of the discrepancy committed by
him/her while filling up online application
form, then the candidature of such a
candidate must be cancelled. However, if
by the discrepancy committed while filling
up online application form the candidate
concerned puts herself in a disadvantaged
situation his/her candidature need not be
cancelled but such a candidature will be
reckoned with such disadvantage as
projected in the application form.

In the present case, the facts as
discussed above, which are not in dispute,
clearly establish that on account of error
while indicating the high school marks in her
online application form due to inadvertent
mistake, the respondent-petitioner neither put
herself in disadvantaged position nor in an
advantaged position. The percentage of the
marks of the respondent-petitioner in her
high school examination is 89.3% and it is
this percentage which was taken into account
by the appellants-State authorities while
reckoning the quality point marks. In such a
situation it cannot be said by any stretch of
imagination that by mistakenly indicating the
High School marks in her on-line application
form the respondent-petitioner put herself in
any advantaged position so as to make her
candidature liable for cancellation.

We have already observed that the
Government Orders dated 05.03.2021 and
04.12.2020 as also the guidelines contained
in the Government Order dated 01.12.2018
are to be given effect to. However, any
mindless application of the provisions
contained in the said Government Orders has
the potential of denying rightful claim of a
deserving candidate who not only qualified in
the written examination but also was
ultimately selected in the final select list. The
validity of the Government Order dated
05.03.2021 has already been upheld by this
Court in the case of Jyoti Yadav and another
(supra) but so far as its application is
concerned, Hon'ble Supreme Court in the
case of Rahul Kumar (supra) has made it
absolute clear that the candidature of a
candidate is liable to be cancelled only in
case such a candidate puts himself/herself in
an advantaged position by committing some
mistake
while
submitting
the
on-line
application form.

In the light of the discussions
made and for the reasons given above, this
Court finds itself in agreement with the
3 All. Chandra Shekhar Dwivedi Vs. State of U.P. & Ors.
561
conclusion drawn by the learned Single
Judge and hence any interference in the
judgement and order under appeal herein
will be unwarranted.

The Special Appeal, thus, lacks
merit which is hereby dismissed.

However, there will be no order
as to costs. "

17. Learned counsel for the petitioner
contended that in Richa Tripathi's case
(supra), the observations of Hon'ble the
Supreme Court as considered subsequently
by another Division Bench judgment in
Jubeda Bano's case (supra) have not been
taken note of wherein it has been
categorically held that on a reading of the
Government Order and Circulars applicable
it is quite clear that wherever a candidate
had put himself in a disadvantageous
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
advantageous position which was beyond
his
rightful
due
or
entitlement
his
candidature will stands cancelled. Based on
this, he says that case of the petitioner is
fairly covered by the decision of Hon'ble
the Supreme Court in Jyoti Yadav's case
(supra) as the petitioner had put himself in
a
disadvantaged
position
as
already
mentioned hereinabove by mentioning less
marks than what he had actually secured.
The fact that more marks had been
mentioned in practical examination would
be of no consequence as it is the grand total
which is considered and that grand total
was less than the actual grand total marks
obtained.

18. Both the decisions in Jyoti Yadav
(supra) and Rahul Kumar (supra) pertain to
same selection and the G.Os. applicable are
also same. The Court may refer to the
relevant portion of the judgment in Jyoti
Yadav's case (supra) wherein the law on the
subject at least so far as the selection at hand
is concerned have been dealt with:

"13. The stand of the State is that
every candidate was obliged to fill up the
relevant entries in the application form
correctly and specially those pertaining to the
marks obtained by the candidates in various
examinations with due care and caution. The
information given in the application form
would reflect in quality points of the
candidates and have a direct bearing on the
merit list. That would in turn, not only
determine the inter se merit but afford
guidance to cater to the choices indicated by
the candidates. The declaration which was
spelt out in the Guidelines and repeated in
the Advertisement, had clearly put every
candidate to notice that if there be any
mistake in the application form, the candidate
could not claim any right to have those
mistakes rectified.

14.
Wherever
the
mistakes
committed by the candidates purportedly
gave additional marks or weightage greater
than what they actually deserved, according
to the Communication dated 05.03.2021,
their candidature would stand rejected.
However, wherever mistakes committed by
the candidates actually put them at a
disadvantage as against their original
entitlement or the variation could be one
attributable to the University or issuing
authority, an exception was made by said
Communication. The reason for treating
these two categories of candidates differently
cannot thus be called irrational.

In the first case, going by the
marks
or
information
given
in
the
562 INDIAN LAW REPORTS ALLAHABAD SERIES
application form the candidate would
secure undue advantage whereas in the
latter category of cases the candidate
would actually be at a disadvantage or
where the variation could not be attributed
to them. The candidates in the latter
category have been given a respite from the
rigor of the declaration. The classification
is clear and precise. Those who could
possibly walk away with the undue
advantage will continue to be governed by
the terms of the declaration, while the other
category would be given some relief.

15. Having considered all the rival
submissions, in our view, the Communication
dated 05.03.2021 made a rational distinction
and was designed to achieve a purpose of
securing fairness while maintaining the
integrity of the entire process. If, at every
juncture, any mistakes by the candidates were
to be addressed and considered at individual
level, the entire process of selection may
stand delayed and put to prejudice. In order
to have definiteness in the matter, certain
norms had to be prescribed and prescription
of such stipulations cannot be termed to be
arbitrary or irrational. Every candidate was
put to notice twice over, by the Guidelines
and the Advertisement.

16.
Having
found
the
Communication dated 05.03.2021 to be
correct, the cases of the petitioners must be
held to be governed fully by the rigors of the
said Communication.

17. We, therefore, see no reason
to interfere in these petitions and no
opportunity beyond the confines of the
Communication dated 05.03.2021 can be
afforded to the petitioners to rectify the
mistakes committed by them. We, therefore,
reject the submissions and dismiss all these
petitions."

19. The Court may also fruitfully
refer to the subsequent decision of Hon'ble
the Supreme Court in the case of Rahul
Kumar (supra):-

"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.0. example,
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
3 All. Chandra Shekhar Dwivedi Vs. State of U.P. & Ors.
563
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. With these clarifications, the
instant petitions are disposed of.

Pending applications, including
miscellaneous
application
also
stand
disposed of."

20. In Jyoti Yadav's case (supra),
the Government Order dated 05.03.2021
has also been considered and the law in this
regard has been categorically clarified as is
mentioned in para nos.14 and 15 of the said
decision quoted hereinabove. It has been
categorically
held
that
wherever
the
mistakes committed by the candidates
purportedly gave additional marks or
weightage greater than what they actually
deserve, according to the communication
dated 05.03.2021, their candidature would
stand
rejected.
However,
wherever
mistakes committed by the candidates
actually put them at the disadvantage as
against their original entitlement or the
variation could be one attributable to the
University
or
issuing
authority,
an
exception
was
made
by
said
communication, the reason for these two
categories of candidates differently cannot
thus be called irrational. From the facts as
discussed hereinabove, it is apparent that
the petitioner herein falls in the category of
those candidates who had actually put
themselves at a disadvantaged position and
therefore, even as per Jyoti Yadav's case
(supra), the case of the petitioner is
covered for grant of relief as observed
therein.

21. The decision rendered in Rahul
Kumar's case (supra) has not been
considered by Division Bench judgment in
Richa Tripathi's case (supra) whereas the
same has been considered by another
Division Bench in Jubeda Bano's case
(supra) as already discussed and quoted
hereinabove.

22. Most importantly, an affidavit was
sought from the petitioner at the time of
offering appointment to him which was
submitted on 09.12.2020, a copy of which
is annexed at page no.109, according to
which, he had given an undertaking that he
would abide by the disadvantageous
position in which he had put himself and
would not claim any advantage of the
higher marks which he had actually
obtained so that merit of the candidates
inter se at the selection is not disturbed.
Therefore, by offering appointment to the
petitioner and by interfering with the
impugned order, inter se merits of the
candidate does not at all get affected in
view of the undertaking already given by
the petitioner.

23. In view of the above discussion,
the impugned order for the reasons given
therein cannot be sustained on facts and in
law, therefore, the impugned orders are
hereby quashed. The petitioner shall be
restored in service in pursuance to the
appointment letter dated 27.01.2021 with
continuity in service. The petitioner shall
be entitled to salary for the period actually
worked but the entire period as above shall
be treated as in service.
564 INDIAN LAW REPORTS ALLAHABAD SERIES

24. Accordingly, the writ petition is
allowed.
----------
(2022)03ILR A564
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 21.12.2021

BEFORE

THE HON'BLE SARAL SRIVASTAVA, J.

Writ A No. 4528 of 2019

Yatendra Kumar ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri
Samir
Sharma,
Sri
Ajay
Kumar
Srivastava

Counsel for the Respondents:
C.S.C., Sri Sunil Kumar Misra

A. Service Law - UP State Road Transport
Corporation
Employees
(other
than
officers) Service Regulations, 1981 - Reg.
64 - Disciplinary enquiry - Removal from
service - Validity - Charges denied -
Documents which had a direct bearing on
the charge levelled against the petitioner,
had not been supplied to him - Effect -
Held, the enquiry proceeding has been
conducted in violation of Regulation 64(2)
and 64(3) of Regulation, 1981 (Para 24
and 25)
B. Constitution of India - Article 226 - Writ
- Maintainability - Alternative remedy -
When
writ
power
can
be
exercised,
explained - Violation of natural justice -
Effect - Apex Court has carved out an
exception where despite there being an
alternative remedy, this Court under Article
226 of the Constitution of India can exercise
its power to entertain the writ petition. The
exception carved out are where there is a
violation of principles of natural justice,
inherent lack of jurisdiction, challenge to an
act, and any provision or for enforcement of
fundamental rights - Held further, more
than nine years have passed since the
petitioner is out of employment. Considering
the fact that the petitioner would retire in a
few years, this Court believes that it would
be harsh upon the petitioner if the matter is
again
remanded
to
the
authorities
concerned. (Para 28 and 34)
C. Constitution of India - Article 14 -
Principle of natural justice - Orders
passed are cryptic and bereft of reasons -
Effect - Held, the impugned orders have
been passed in violation of principles of
natural justice. (Para 31)
D. Constitution of India - Article 14 -
Principle of natural justice - Necessary
documents demanded by the petitioner to
submit his defence have not been supplied
to the petitioner - Effect - Held, the
impugned orders have been passed in
violation of principles of natural justice.
(Para 31)
Writ petition allowed. (E-1)
List of Cases cited :-
1. Ravi Yashwant Bhoir Vs Collector; (2012) 4
SCC 407
2. Satwati Deswal Vs St. of Har. & Ors.; (2010)
1 SCC 126
3. Civil Appeal No.5728 of 2021; M/s Magadh
Sugar & Energy Ltd. Vs The State of Bihar &
Ors.
4. Allahabad Bank & anr. Vs Krishna Narayan
Tewari; (2017) 2 SCC 308
(Delivered by Hon'ble Saral Srivastava, J. )

1. Heard Sri Samir Sharma, Advocate
assisted by Sri Ajay Kumar Srivastava,
learned counsel for the petitioner, and Sri
Sunil Kumar Mishra, learned counsel for
the Transport Corporation.

2. The petitioner by means of the
present writ petition has assailed the order
of punishment dated 05.11.2012, the