# Garima Vashishtha v. State of U.P. & Ors

- **Citation:** (2023) 10 ILRA 914
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-07-25
- **Case number:** Writ-A No. 8354 of 2023
- **Bench:** Manjive Shukla
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/garima-vashishtha-v-state-of-u-p-ors-49356
- **Pages:** 13

## Headnote

Education Officer, Budaun, vide order dated
3.12.2022, on the ground of incorrect entries of
marks
in
High
School
and
Intermediate
examinations in her application for the Assistant
Teacher Recruitment Examination, 2019. The
court found that the petitioner's incorrect entries
resulted in a lower quality point mark (70.11)
compared to the correct marks (70.42), placing
her at a disadvantageous position in the merit
list. The Government Order dated 4.12.2020
protects candidates who are not at an
advantageous stage due to incorrect entries, as
affirmed by the Supreme Court in Rahul Kumar
Vs St. of U.P. (Writ Petition (Civil) No. 378 of
2021, dated 29.6.2021). The District Basic
Education
Officer
failed
to
consider
the
petitioner's reply to the show cause notice,
rendering the cancellation order arbitrary and
contrary to the Government Order. The order
dated
3.12.2022
was
quashed,
and
the
respondents were directed to reinSt. the
petitioner with regular salary payments.

Writ petition allowed.

Case Law Discussed:

## Text

_Characters 0–39,898 of 46,703. This is a partial read: ask again with offset=39898 for what follows._

914 INDIAN LAW REPORTS ALLAHABAD SERIES
launched at the behest of the department
and the employee is acquitted, different
considerations may arise. The learned
counsel for the Appellant endeavored to
distinguish the prosecution launched by the
police for involvement of an employee in a
criminal case and the criminal proceedings
initiated at the behest of the employer. The
observation made in the judgment inUnion
of India and Others v. Jaipal Singh(supra)
has to be understood in a manner in which
the department would become liable for
back wages in the event of a finding that
the initiation of the criminal proceedings
was mala fide or with vexatious intent. In
all other cases, we do not see any
difference between initiation of the criminal
proceedings by the department vis-a-vis a
criminal case lodged by the police. For
example, if an employee is involved in
embezzlement
of funds
or is
found
indulging in demand and acceptance of
illegal gratification, the employer cannot
be mulcted with full back wages on the
acquittal of the person by a criminal Court,
unless it is found that the prosecution is
malicious."

28. From a perusal of the judgments
in the case of Ranchhodji Chaturji
Thakore (supra), Jaipal Singh (supra)
and Raj Narain (supra) it thus emerges
that it is only if the petitioner herein would
have been placed under suspension on the
ground of disciplinary proceedings which
may have resulted subsequently in his
exoneration on culmination of disciplinary
proceedings that the petitioner might have
been entitled for payment of full salary for
the period of suspension. However, no
disciplinary proceedings were ever initiated
against the petitioner rather there was
deemed suspension on account of the
petitioner being put behind bars in the
criminal case in which subsequently the
petitioner has been bailed out and thereafter
the petitioner's deemed suspension was
revoked and he was reinstated in service.
As the petitioner kept away from work on
account of being incarcerated in jail on
account of having involved himself in a
crime, though he was later acquitted, as
such, he had disabled himself from
rendering the service on account of being
incarcerated
in
jail.
Under
these
circumstances, the petitioner would not be
entitled for payment of salary for the period
of his deemed suspension.

29. Keeping in view the aforesaid
discussion, the writ petition is party
allowed. The
order
impugned
dated
22.06.2023, a copy of which Annexure No.
1 to the petition, is set aside. The
Competent
Authority
is
required
to
consider the claim of the petitioner for
payment of subsistence allowance for the
period of his deemed suspension.

30. Let such consideration be done
within a period of two months from the
date of receipt of certified copy of this
order.

----------
(2023) 10 ILRA 914
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 25.07.2023

BEFORE

THE HON'BLE MANJIVE SHUKLA, J.

Writ-A No. 8354 of 2023

Garima Vashishtha ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri
Siddharth
Khare,
Sr.
Advocate
10 All. Garima Vashishtha Vs. State of U.P. & Ors.
915
Counsel for the Respondents:
C.S.C., Smt. Archana Singh, Sri Chandan
Agarwal

Held: The petitioner's appointment as Assistant
Teacher was cancelled by the District Basic
Education Officer, Budaun, vide order dated
3.12.2022, on the ground of incorrect entries of
marks
in
High
School
and
Intermediate
examinations in her application for the Assistant
Teacher Recruitment Examination, 2019. The
court found that the petitioner's incorrect entries
resulted in a lower quality point mark (70.11)
compared to the correct marks (70.42), placing
her at a disadvantageous position in the merit
list. The Government Order dated 4.12.2020
protects candidates who are not at an
advantageous stage due to incorrect entries, as
affirmed by the Supreme Court in Rahul Kumar
Vs St. of U.P. (Writ Petition (Civil) No. 378 of
2021, dated 29.6.2021). The District Basic
Education
Officer
failed
to
consider
the
petitioner's reply to the show cause notice,
rendering the cancellation order arbitrary and
contrary to the Government Order. The order
dated
3.12.2022
was
quashed,
and
the
respondents were directed to reinSt. the
petitioner with regular salary payments.

Writ petition allowed.

Case Law Discussed:

1. Rahul Kumar Vs St. of U.P. & ors., Writ
Petition (Civil) No. 378 of 2021, decided on
29.6.2021.

2. Nandini Baranwal Vs St. of U.P. & ors.,
Writ-A No. 17750 of 2022, decided on
15.12.2022.

3. Jyoti Yadav & anr.Vs St. of U.P. & ors.,
Writ Petition (Civil) No. 322 of 2021, decided
on 8.4.2021.

(Delivered by Hon'ble Manjive Shukla,
J.)

1. Heard Sri Siddharth Khare,
learned
counsel
appearing
for
the
petitioner and learned Standing Counsel
appearing for the Respondents No. 1 and 2
as well as Smt. Archana Singh, learned
counsel appearing for the Respondents
No.3 and 4.

2. Petitioner through present writ
petition has challenged the order dated
3.12.2022 passed by the District Basic
Education
Officer,
Budaun,
whereby
appointment of the petitioner on the post of
Assistant Teacher in Primary School
Khiriya
Rahlu,
Block
Jagat,
District
Budaun has been cancelled with effect
from the date of her initial appointment.

3. Facts of the case, in brief, are that
Secretary,
Examination
Regulatory
Authority, U.P. Pyrayagraj published an
advertisement thereby applications were
invited from the eligible candidates for
Assistant
Teacher
Recruitment
Examination,
2019.
The
aforesaid
examination was conducted for making
appointments on 69,000 posts of Assistant
Teacher in primary schools run by U.P.
Basic Education Board, Prayagraj.

4. Petitioner submitted her online
application
and
she
was
allotted
Registration
No.0300067918.
The
petitioner pursuant to her application
appeared
in
the
Assistant
Teacher
Recruitment Examination, 2019 and was
declared successful. Thereafter, on the
basis of marks obtained by the petitioner in
the
Assistant
Teacher
Recruitment
Examination, 2019, she submitted her
application for appointment to the post of
Assistant Teacher.

5.

Petitioner
pursuant
to
her
application, appeared in the counselling for
district Budaun on 3.6.2020 and she was
declared successful for appointment to the
post of Assistant Teacher in a primary
916 INDIAN LAW REPORTS ALLAHABAD SERIES
school of district Budaun. Petitioner's
name figured at Serial No.226 of the select
list prepared by the department and in the
aforesaid list it was mentioned that
petitioner has obtained 70.11 quality point
marks.

6. The aforesaid counselling and
select list prepared was cancelled and
thereafter, counselling was again held on
2.12.2020 and this time also, petitioner's
name figured at Serial No.253 and her
quality point marks were mentioned as
70.11 but in front of her name, a remark
was written that 'there is difference in High
School and Intermediate marks filled in by
the petitioner and Cumulative Grade Point
Average (C.G.P.A.)'.

7. The State Government issued a
Government Order on 4.12.2020, wherein
it has been provided that if the marks filled
in by the candidate in the application form
are less than the actual marks shown in his
mark-sheet, then affidavit be taken from the
said candidate that he is in agreement with
his position in the select list on the basis of
his lower marks and he will not claim for
higher position in the said list, thereafter,
he may be issued appointment letter. In the
Government Order dated 4.12.2020, it has
been further provided that if the candidate,
while filling up the form, has mentioned
the total marks for which the examination
was conducted more than the marks
mentioned in his mark sheet, affidavit be
taken from the said candidate that on the
basis of higher marks, he will not claim a
higher position in the select list and he
may be issued appointment letter.

8. Petitioner in her High School
examination secured CGPA-9.2 but
while filling up the Application Form
for
Assistant
Teacher
Recruitment
Examination, 2019, she filled the marks
obtained by her as 9 and total marks for
High School examination as 10 and
therefore,
while
calculating
the
percentage of marks of High School
examination of the petitioner, it was
taken as 90%, whereas as per CGPA9.2, her percentage of marks comes to
9.5 x CGPA i.e. 9.5 x 9.2 i.e. 87.4%.
Thus, it is apparent that due to incorrect
marks of High School examination
filled in by the petitioner in her
application
form,
she
was
at
an
advantageous stage as her percentage
became 90% in place of 87.4%.

9. Petitioner while filling up her
application form for the Assistant
Teacher
Recruitment
Examination,
2019 filled in the marks obtained by her
in Intermediate examination as 331 and
the total marks of the Intermediate
examination as 500 whereas actually
petitioner has secured 360 marks out of
500 marks. On the basis of entry of the
marks of the Intermediate examination
in the application form, petitioner's
percentage was calculated as 66.2%,
whereas as per the marks mentioned in
her
mark-sheet
of
Intermediate
examination, her percentage comes to
72%.

10. If the mistake committed by
the petitioner while filling up her
application form for Assistant Teacher
Recruitment Examination, 2019 and the
petitioner's marks in High School and
Intermediate examination are taken
together, then it is patently manifest
that due to the mistake committed by
the
petitioner
she
was
at
a
disadvantageous stage as the average
marks of her High School and Intermediate
examination come to 79.7% whereas the
10 All. Garima Vashishtha Vs. State of U.P. & Ors.
917
average marks on the basis of incorrect
entries come to 78.1%.

11. Petitioner in paragraph 53 of her
writ petition has categorically stated that as
per her actual marks obtained in High School
and Intermediate examinations, when the
quality point marks are calculated, then it
come to 70.42 whereas on the basis of
incorrect entries made in the application form
her quality point marks have been ascertained
as 70.11.

12. Since petitioner due to incorrect
entries made in her application form was at a
disadvantageous stage in the merit list, as
such in view of the provisions made in the
Government Order dated 4.12.2020, she
submitted a representation along with an
affidavit to the District Basic Education
Officer, Budaun, wherein she demonstrated
that due to incorrect entries of marks in her
application form she is at a disadvantageous
position and further since on the basis of
incorrect entries she has secured a place in
the merit list, therefore in view of the
provisions made in the Government Order
dated
4.12.2020
she
is
entitled
to
appointment on the post of Assistant Teacher.

13. The District Basic Education
Officer, Budaun considered the aforesaid
representation of the petitioner and issued an
appointment order on 11.12.2020 thereby
petitioner was appointed to the post of
Assistant Teacher of a primary school.
Petitioner pursuant to her appointment order
dated 11.12.2020 submitted joining in
Primary School Khiria Rahlu, Block Jagat,
District Budaun on 28.1.2021 and started
discharging duties attached to her post.

14. The District Basic Education
Officer, Budaun after the appointment of the
petitioner
constituted
a
three-member
committee for making inquiry in respect of
candidates who have filled in their marks
obtained in the examinations incorrectly and
a notice was issued to the petitioner on
25.6.2021 whereby she was required to
appear before the committee on 28.6.2021 at
11.00 a.m. in the office of District Basic
Education Officer, Budaun. Petitioner on
5.7.2021 appeared before the committee and
submitted her reply wherein she categorically
mentioned that on the basis of correct marks
obtained by the petitioner in her High School
and Intermediate examination, her quality
point marks come to 70.42, whereas on the
basis of incorrect entries made in the
application form her quality point marks have
been calculated as 70.11, therefore she is not
at an advantageous stage due to incorrect
entries made in the application form and
therefore, her appointment stands protected in
view of the provisions made in the
government orders issued by the State
Government.

15. The District Basic Education
Officer, Budaun thereafter issued a notice to
the
petitioner
on
23.8.2022
whereby
petitioner was required to show cause as to
why her services may not be terminated.
Petitioner submitted her reply to the show
cause notices dated 23.8.2022 on 29.8.2022
wherein she categorically demonstrated that
as per marks mentioned in the mark-sheets of
the petitioner, her quality point marks come
to 70.42, whereas due to incorrect entries
made in the application form, her quality
point marks have been ascertained as 70.11.
Therefore, due to mistake committed by the
petitioner she is not at an advantageous stage
and therefore, her appointment stands
protected in view of the provisions made in
the Government Order dated 4.12.2020 and
accordingly,
notice
issued
against
the
petitioner is liable to be discharged.
918 INDIAN LAW REPORTS ALLAHABAD SERIES

16. Petitioner also approached to the
District Magistrate, Budaun and raised her
grievance, then the District Magistrate,
Budaun constituted a committee under the
chairmanship of City Magistrate, Budaun
to look into the grievance of the petitioner
and to submit a report. In the said
committee, the District Basic Education
Officer, Budaun was also a member. The
committee headed by City Magistrate,
Budaun has submitted a report to District
Magistrate, Budaun on 23.2.2023 in which
it has been found that petitioner due to
incorrect entries made in her application
form was at a disadvantageous stage and
was entitled to continue in service. The
relevant portion of the report dated
23.2.2023 is extracted as under:-

"मजला बेमसक मशक्षा अमिकारी, बिायूिं ने अपने सेवा
सिामप्त आिेश सिंख्या बेमसक/13481-89/2022-23 मिनािंक
03.12.2022 द्वारा शासनािेश सिंख्या-80/68-5-2021
बेमसक मशक्षा अनुभाग-5 लखनऊ मिनािंक 05 िाचा 2021 के
मबन्द्िु सिंख्या-02 के प्रस्तर-01 िें िी गई व्यवस्र्था मक "जहािं पर
अभ्यर्थी के द्वारा स्वयिं मबना मकसी अमभलेखीय आिार पर
वास्तमवक प्राप्तािंक से अमिक अिंक अर्थवा कि पूणाांक अिंमकत मकया
गया है, के चयन अभ्यर्थान को मनरस्त कर मिया जाये, के एक िात्र
आिार पर ही सुश्री गररिा वमशष्ठ को सेवा से पृर्थक कर मिया गया
है।"

शासनािेश सिंख्या-80/68-5-2021 बेमसक मशक्षा
अनुभाग-5 लखनऊ मिनािंक 05 िाचा 2021 के मबन्द्िु सिंख्या-02
के प्रस्तर-01 िें िी गई व्यवस्र्था के पररशीलन से प्रतीत होता है मक
यह व्यवस्र्था केवल उन अभ्यमर्थायों पर प्रभावी है मजनके द्वारा अपने
वास्तमवक प्राप्तािंक से अमिक प्राप्तािंक अर्थवा अपने वास्तमवक पूणाांक
से कि पूणाांक भर कर अपना गुणािंक बढाते हुये वरीयता सूची िें
उच्च स्र्थान प्राप्त करने का प्रयास मकया गया हो, को सेवा से पृर्थक
करने सम्बन्द्िी कायावाही हेतु मनिेमशत मकया गया है। सार्थ ही सार्थ
69000 भती चयन/मनयुमक्त हेतु मनगात शासनािेश सिंख्या-
1321/68-5-2018बेमसक
मशक्षा
अनुभाग-5लखनऊ
मिनािंक 28अगस्त 2018 िें प्रामविामनत व्यवस्र्था के अनुसार
गमठत जनपिीय चयन समिमत की बैठक िें मनयुमक्त मवषयक मनणाय
मलये जाने की व्यवस्र्था बनाई गई है मकन्द्तु सुश्री गररिा वमशष्ठ की
सेवा सिामप्त का मनणाय इस प्रयोजन हेतु मनिााररत समिमत द्वारा
नहीं मलया गया है।

उल्लेखनीय है मक सुश्री गररिा वमशष्ठ की िशा अपने
वास्तमवक प्राप्तािंक से अमिक अिंक अर्थवा वास्तमवक पूणाांक से
कि पूणाांक अिंमकत कर लाभ उठाना नहीं र्था वरन् उनके द्वारा उक्त
कृत्य अज्ञानतावश मकया गया है क्योंमक यमि अभ्यर्थी आवेिन
भरते सिय अपने सही प्राप्तािंक भरती तो उनके वास्तमवक गुणािंक
70.42 उनके चयन के गुणािंक 70.11 से अमिक होता। सुश्री
गररिा वमशष्ठ को पूवा िें मनगात शासनािेश मिनािंक
04.12.2020िें वमणात व्यवस्र्था के अनुसार सिस्त
औपचाररकताऐिं पूणा करने के उपरान्द्त ही मनयुमक्त पत्र मिनािंमकत
11-12-2020 मनगात मकया गया है।

अन्द्ततः उपरोक्त साक्ष्यों के पररशीलन से यह स्पष्ट हो रहा
है मक सुश्री गररिा वमशष्ठ द्वारा जानबूझकर ऐसा कोई कृत्य नहीं
मकया गया है मजससे उनको कोई अनुमचत लाभ प्राप्त हो सके,
आवेिन पत्र भरते सिय अज्ञानतावश अर्थवा त्रूमर्वश ही ऐसी
मवसिंगमतयािं हुई है। सुश्री गररिा वमशष्ठ द्वारा यमि तत्कालीन बेमसक
मशक्षा अमिकारी बिायूिं द्वारा मनगात उक्त सेवा सिामप्त आिेश
मिनािंक 03-12-2022के मवरूद्ध भमवष्य िें कोई प्रत्यावेिन
सक्षि प्रामिकारी के सक्षि प्रस्तुत मकया जाता है तो सक्षि
प्रामिकारी द्वारा इनके प्रत्यावेिन को उपरोक्त तथ्यों पर भी
सहानुभूमतपूवाक मवचार करते हुये मनयिानुसार मनस्ताररत करना
उमचत होगा।

आख्या िहोिय की सेवा िें सािर अवलोकनार्था प्रेमषत है।

ह० अपठनीय ह०अपठनीय
ह० अपठनीय

23.02.2023 23.2.23

मजला पिंचायत राज अमिकारी मजला बेमसक मशक्षा
अमिकारी नगर िमजस्रेर्

 बिायूाँ बिायूाँ
बिायूाँ

17. The District Basic Education
Officer, Budaun has also written a letter
on 29.3.2023 to Secretary, U.P. Basic
Education Board, Prayagraj wherein he
has categorically mentioned that on the
basis of incorrect entries made by the
petitioner in her application form she is
not at all at an advantageous stage and
therefore, adequate decision may be taken
in the matter. The relevant portion of the
letter dated 29.3.2023 is extracted as
under:-
10 All. Garima Vashishtha Vs. State of U.P. & Ors.
919

"उक्त शासनािेश के क्रि िें तात्कालीन मजला बेमसक मशक्षा
अमिकारी, बिायूिं द्वारा कायाालय पत्रािंकः बेमसक/834852/2022-23 मिनािंकः 23.08.2022 के िाध्यि से सुश्री
गररिा वमशष्ठ को सेवा सिामप्त नोमर्स मनगात कर कायाालय पत्रािंकः
बेमसक/13481-89/2022-23
मिनािंकः03.12.2022
(सिंलवनकः3)के द्वारा इनकी सेवा सिाप्त की गई।

तत्क्रि िें सुश्री गररिा वमशष्ठ द्वारा सेवा सिामप्त के मवरूद्ध
मजलामिकारी िहोिय, बिायूिं के सिक्ष अपना मशकायती पत्र प्रस्तुत
मकया गया। मजलामिकारी िहोिय, बिायूिं द्वारा प्रकरण पर जािंच हेतु
1. नगर िमजस्रेर्, बिायूिं 2. मजला बेमसक मशक्षा अमिकारी,
बिायूिं, 3. मजला पिंचायत राज अमिकारी, बिायूिं की तीन सिस्यी
जािंच समिमत गमठत कर जािंच कराई गई। जािंच समिमत द्वारा
जॉचोपरान्द्त मजलामिकारी िहोिय, बिायूिं को आख्या प्रस्तुत की गई
(सिंलवनकः4) मजसके मनष्कषा मबन्द्िु िें उल्लेख मकया गया है मक
"सुश्री गररिा वमशष्ठ द्वारा जानबूझकर ऐसा कोई कृत्य नहीं मकया
गया है मजससे उनको कोई अनुमचत लाभ प्राप्त हो सके, आवेिन पत्र
भरते सिय अज्ञानतावश अर्थवा त्रुमर्वश ऐसी मवसिंगमतयािं हुई है।
सुश्री गररिा वमशष्ठ द्वारा यमि तत्कालीन मजला बेमसक मशक्षा
अमिकारी बिायूिं द्वारा मनगात उक्त सेवा सिामप्त आिेश
मिनािंकः03.12.2022 के मवरूद्ध भमवष्य िें कोई प्रत्यावेिन सिक्ष
प्रामिकारी के सिक्ष प्रस्तुत मकया जाता है तो सक्षि प्रामिकारी द्वारा
इनके प्रत्यावेिन को उपरोक्त तथ्यों पर सहानुभूमतपूवाक मवचार करते
हुये मनयिानुसार मनस्ताररत करना उमचत होगा"

िहोिय उ०प्र० बेमसक मशक्षा अमिमनयि, 1972 के
अन्द्तगात उ०प्र० बेमसक मशक्षा किाचारी वगा मनयिावली, 1973 के
अध्याय 3 के मबन्द्िु सिं०ेः 12 व13 (सिंलवनकः5) िें वमणात
व्यवस्र्था के अनुसार उक्त प्रकरण के मनस्तारण हेतु आप अपीलीय
अमिकारी है।

अतः उपरोक्तानुसार आख्या आपकी सेवा िें सािर प्रेमषत
है।"

18. The District Basic Education
Officer, Budaun has passed an order on
3.12.2022 whereby petitioner's appointment
has been cancelled with effect from the date
of her initial appointment. The District Basic
Education
Officer,
Budaun
without
considering the reply submitted by the
petitioner has straightaway cancelled her
appointment on the ground that she has made
mistakes in filling up the application form
and thereby has filled incorrect marks of
High School and Intermediate examination
and therefore, her appointment is liable to be
cancelled.

19. Learned counsel appearing for the
petitioner has argued that due to incorrect
entries made by the petitioner in her
application form for Assistant Teacher
Recruitment Examination, 2019 she is at a
disadvantageous stage as if the correct marks
would have been entered in the application
form, then quality point marks of the
petitioner would have been more than the
quality point marks given to her on the basis
of
incorrect
entries.
Learned
counsel
appearing for the petitioner has further argued
that the State Government itself issued
Government Order on 4.12.2020 wherein it
has been categorically mentioned that if on
the basis of incorrect entries of marks in the
application form, the candidate is at a
disadvantageous
stage,
then
the
said
candidate is entitled to appointment on the
post of Assistant Teacher and in the case of
the petitioner, it is patently manifest that on
the basis of incorrect entries made by the
petitioner in her application form regarding
marks obtained in High School and
Intermediate examinations, she is at a
disadvantageous stage as on the basis of her
incorrect entries her quality point marks have
been assessed as 70.11, whereas her quality
point marks on the basis of correct marks of
High School and Intermediate examination
come to 70.42. Therefore, the District Basic
Education
Officer,
Budaun
while
cancelling the appointment of the petitioner
has committed a manifest error and the
order dated 3.12.2022 is contrary to the
provisions made in the Government Order
dated 4.12.2020.

20. Learned counsel appearing for the
petitioner has invited attention of this court
towards
judgment
and
order
dated
920 INDIAN LAW REPORTS ALLAHABAD SERIES
29.6.2021 passed by the Hon'ble Supreme
Court in Writ Petition (Civil) No.378 of
2021 (Rahul Kumar vs. State of U.P. and
others) and has submitted that the Hon'ble
Supreme Court in categorical terms has
provided that if due to incorrect entries of
marks made by the candidate in application
form, he is at an advantageous stage, then
his appointment deserves to be cancelled
but where the candidate due to incorrect
entries of marks is not at an advantageous
stage, then he is entitled to appointment.
Thus, learned counsel appearing for the
petitioner has contended that the case of the
petitioner is squarely covered by the
aforesaid
judgment
rendered
by
the
Hon'ble Supreme Court and therefore, the
order dated 3.12.2022 whereby petitioner's
appointment has been cancelled, is illegal
and cannot sustain in the eyes of law.

21. Learned counsel appearing for the
petitioner has also vehemently argued that
the petitioner in response to the notice
issued by the District Basic Education
Officer,
Budaun
has
submitted
a
comprehensive
reply
wherein
she
categorically demonstrated that due to
incorrect entries of marks made in the
application
form
petitioner
is
at
a
disadvantageous stage and therefore, her
appointment stands protected in view of the
provisions made in the Government Order
dated 4.12.2020 but the District Basic
Education Officer, Budaun did not consider
the said reply at all and straightaway has
passed the order dated 3.12.2022 whereby
petitioner's appointment has been cancelled
from the date of her initial appointment.
Learned counsel for the petitioner has also
argued that it is well settled proposition of
law through catena of judgments of this Court
as well as of the Hon'ble Supreme Court that
if the authority has not considered the reply
of the employee and straightaway has
cancelled his appointment, then the order
cancelling appointment cannot sustain in the
eyes of law. In the case of the petitioner, a
bare perusal of the impugned order makes it
crystal clear that reply of the petitioner has
not been considered at all, therefore the
impugned order cannot sustain in the eyes of
law.

22. Learned counsel appearing for the
petitioner has thus concluded his arguments
by submitting that the order dated 3.12.2022
whereby appointment of the petitioner has
been cancelled, cannot sustain in the eyes of
law and is liable to be quashed by this Court.

23. Per contra, Smt. Archana Singh,
learned
counsel
appearing
for
the
Respondents No.3 and 4 has argued that
along with the application form guidelines for
filling up the form were issued to the
candidates and in the said guidelines, it was
categorically provided that the candidates are
required to fill up the information required in
the application form correctly and if any
mistake is committed by the candidates, then
they will have to suffer as no opportunity will
be given to correct the mistakes. Smt.
Archana Singh, learned counsel appearing for
the Respondents No.3 and 4 has further
argued that since petitioner has made
incorrect entries in her application form in
respect of marks obtained by her in High
School and Intermediate examinations,
therefore, she is not entitled to appointment
on the post of Assistant Teacher and as
such, the District Basic Education Officer,
Budaun while passing the order dated
3.12.2022 thereby cancelling appointment
of the petitioner from the date of her initial
appointment, has not committed any
illegality.

24. Smt. Archana Singh, learned
counsel appearing for the Respondents
10 All. Garima Vashishtha Vs. State of U.P. & Ors.
921
No.3 and 4 has emphatically argued that on
the basis of incorrect entries made by the
petitioner with respect to marks obtained
by her in High School examination,
petitioner is at an advantageous stage as her
percentage in High School examination has
been taken as 90% whereas on the basis of
actual CGPA her percentage comes to
87.4%. Smt. Archana Singh, learned
counsel appearing for the Respondents
No.3 and 4 has further submitted that
position of the petitioner on the basis of
incorrect entries of marks has to be seen
separately and in respect of High School
examination she is at an advantageous
stage, whereas on the basis of incorrect
entries of marks made in the application
form for Intermediate examination she is at
a disadvantageous stage, therefore she is
not liable to be given the protection of the
provisions of the Government Order dated
4.12.2020 and therefore, the order dated
3.12.2022 passed by the District Basic
Education Officer, Budaun does not suffer
from any illegality or infirmity.

25. Learned counsel appearing for the
Respondents
No.3
and
4
has
thus
concluded her arguments and has submitted
that the writ petition filed by the petitioner
is liable to be dismissed by this court.

26. I have considered the rival
submissions advanced by the learned
counsels appearing for the parties.

27. I find that the petitioner in her
High School examination has secured 9.2
CGPA and as per formula given in the
marksheet of the petitioner, her percentage
comes to 9.5 x 9.2 (CGPA) = 87.4%,
whereas petitioner while filling up her
application form has mentioned that she
secured 9 marks out of 10 marks and
thereby her percentage comes to 90%.

28. I further find that the petitioner in
her Intermediate examination has secured
360 marks out of total 500 marks and
thereby her percentage of marks comes to
72%, whereas in the application form
petitioner has incorrectly mentioned that
she secured 331 marks out of total 500
marks, which comes to 66.2%.

29. The entry of High School marks
in the application form of the petitioner
puts her at an advantageous stage whereas
incorrect entry of Intermediate marks in her
application
form
puts
her
at
a
disadvantageous stage.

30. It is noteworthy that quality point
marks on the basis of which selection is
made for appointment on the post of
Assistant Teacher is based on percentage of
marks mentioned in the application form in
High School examination, Intermediate
examination
and
marks
obtained
in
Training Course. If on the basis of incorrect
entries made by the petitioner in her
application form her quality point marks
are determined, then the same comes to
70.11 whereas if on the basis of actual
marks obtained by the petitioner in her
High School and Intermediate examination
her quality point marks are determined,
then the same comes to 70.42. Thus, it is
patently manifest that petitioner by making
incorrect entries in her application form,
has put her at a disadvantageous position.

31. The State Government for dealing
with the incorrect entries of marks made in
the application forms by the candidates in
Assistant
Teacher
Recruitment
Examination, 2019 has issued Government
Order dated 4.12.2020. The essence of
Government Order dated 4.12.2020 is very
apparent that the State Government has
provided that if the candidate due to
922 INDIAN LAW REPORTS ALLAHABAD SERIES
incorrect entries of marks made in the
application form is not at an advantageous
stage and on the basis of such incorrect
entries candidate has been selected, then
the said candidate should not be denied
appointment. The relevant portion of
Government Order dated 4.12.2020 is
extracted as under:-

"मबन्द्िू सिंख्या-1हाईस्कूल, इण्र्रिीमडएर्, स्नातक प्रमशक्षण,
र्ी०ई०र्ी० के अिंकपत्र एविं प्रिाण पत्र िें अिंमकत अभ्यर्थी के नाि,
क्रिािंक, िाता मपता के नाि िें मभन्द्नता-

उपयुाक्त प्रकार के मवसिंगमतयों के सम्बन्द्ि िें मनम्नानुसार
कायावाही मकये जाने का मनणाय मलया गया हैः-

(1) अिंकपत्र एविं प्रिाण- पत्र िें अभ्यर्थी, अभ्यर्थी के िाता
एविं मपता के नाि गलत होने पर चयन मनरस्त िाना जायेगा, मकन्द्तु
ऐसे चयमनत अभ्यमर्थायों मजनके द्वारा अपने अर्थवा िाता, मपता/पमत
के नाि की िात्र वतानी िूल शैमक्षक अमभलेखों से मभन्द्न
(Spelling Mistake) अिंमकत की गयी है, उनको मनयुमक्त पत्र
इस शता के सार्थ िे िी जाय मक वह अपने शैमक्षक अमभलेखों िें 06
िाह की सिय सीिा के भीतर सिंशोिन कराकर मजला बेमसक मशक्षा
अमिकारी कायाालय िें अमभलेख जिा करेंगे।

(2) अभ्यर्थी के आवेिन एविं प्रस्तुत अिंकपत्र एविं प्रिाण पत्र
िें िाता मपता का नाि अलग है, तो स्वीकार नहीं मकया जायेगा,
परन्द्तु िाता के स्र्थान पर मपता का नाि और मपता के स्र्थान पर िाता
का नाि अिंमकत है तो अन्द्य वैिामनक अमभलेखों से परीक्षणोपरान्द्त
यह पुष्ट होता है मक अभ्यर्थी के िाता एविं मपता का वास्तमवक नाि
वहीं है तो इस मलमपमकय त्रुमर् के मलए उसका चयन मनरस्त नहीं
मकया जायेगा।

मबन्द्िू सिंख्या-2 अभ्यमर्थायों द्वारा प्रस्तुत हाईस्कूल,
इण्र्रिीमडएर्,स्नातक, प्रमशक्षण के प्राप्तािंक एविं पूणााक तर्था प्राप्त
एक्सेल सीर् के पूणााक व प्राप्तािंक िें मभन्द्नता-

उपयुाक्त प्रकार के मवसिंगमतयों के सिंबिंि िें मनम्नानुसार
कायावाही मकये जाने का मनणाय मलया गया हैः-

(1) यमि अभ्यर्थी द्वारा िूल अिंकपत्र के सापेक्ष प्राप्तािंक कि
भरा गया है तो ऐसे अभ्यर्थी से कि अिंक भरने का सिुमचत
अमभलेखीय आिार प्राप्त कर मलया जाय। सिुमचत आिार पाये जाने
पर अभ्यर्थी से इस आशय का शपर्थ पत्र अमनवाया रूप से लेकर मक
वह अपनी भरे हुए कि अिंक के आिार पर चयन से सहित ह िं तर्था
भमवष्य िें अमिक प्राप्तािंक के आिार पर िेररर् पररवतान की िािंग नहीं
करेगा। चूिंमक िेररर् िें कोई पररवतान नहीं होना है, इस कारण उसको
मनयुमक्त पत्र मनगात कर मिया जाय।

(2) यमि अभ्यर्थी द्वारा िूल अिंकपत्र के सापेक्ष पूणााक
अमिक भऱा गया है तो ऐसे अभ्यर्थी से अमिक पूणाांक भरने का
सिुमचत अमभलेखीय आिार प्राप्त कर मलया जाय। सिुमचत आिार
पाये जाने पर अभ्यर्थी से इस आशय का शपर्थ पत्र लेकर मक वह
अपने भरे हुए अमिक पूणााक के आिार पर चयन से सहित है तर्था
भमवष्य िें िूल/कि पूणाांक के आिार पर िेररर् पररवतान की िािंग
नहीं करेगा। चूिंमक िेररर् िें कोई पररवतान नहीं होना है, इस कारण
उसको मनयुमक्त पत्र मनगात कर मिया जाय।

(3) ऐसे अभ्यर्थी जो आवेिन पत्र िें शैमक्षक अहाता िें प्राप्त
वास्तमवक अिंक से अमिक प्राप्तािंक भरें है, के सम्बन्द्ि िें उल्लेखनीय
है मक चूिंमक िेररर् अभ्यर्थी द्वारा अिंमकत प्राप्तािंक के आिार पर
मनिााररत होता है अतः यमि उनको वास्तमवक कि प्राप्तािंक के आिार
पर चयन मकया जाता है तो िेररर् पररवमतात हो जायेगी। इससे पूरी
चयन सूची पररवमतात हो जायेगी। वास्तमवक प्राप्तािंक से अमिक अिंक
भरने का उद्देश्य येन-केन प्रकारेण चयमनत होने का भी हो सकता है,
उक्त के अमतररक्त िा०उच्चति न्द्यायालय के आिेश मिनािंक
18.11.2020द्वारा पूवा िें प्रकामशत की गयी िेररर् सूची (चयन
सूची) के आिार पर मनयुमक्त की प्रमक्रया पूणा करने के मनिेश मिये
गये है। उक्त के आलोक िें चयन सूची/िेररर् मलस्र् िें मकसी प्रकार
का पररवतान मकया जाना उमचत नहीं है। इस कारण ऐसे अभ्यमर्थायों
का चयन मनरस्त कर मिया जाय।

(4) ऐसे अभ्यर्थी जो आवेिन पत्र िें शैमक्षक अहाता के
पूणाांक को वास्तमवक पूणाांक से कि भरें है, के सम्बन्द्ि िें
उल्लेखनीय है मक चूिंमक िेररर् अभ्यर्थी द्वारा अिंमकत प्राप्तािंक के
आिार पर मनिााररत होता है अतः यमि उनको वास्तमवक अमिक
पूणाांक के आिार पर चयन मकया जाता है तो िेररर् पररवमतात हो
जायेगी एविं इससे पूरी चयन सूची पररवमतात हो जायेगी। वास्तमवक
पूणाांक से कि अिंक भरने का उद्देश्य येन-केन प्रकारेण चयमनत होने
का भी हो सकता है। उक्त के अमतररक्त िा० उच्चति न्द्यायालय के
आिेश मिनािंक 18.11.2020 द्वारा पूवा िें प्रकामशत की गयी
िेररर् सूची (चयन सूची) के आिार पर मनयुमक्त की प्रमक्रया पूणा
करने के मनिेश मिये गये है। उक्त के आलोक िें चयन सूची/िेररर्
मलस्र् िें मकसी प्रकार का पररवतान मकया जाना उमचत नहीं है। इस
कारण ऐसे अभ्यमर्थायों का चयन मनरस्त कर मिया जाय।"

32. The intention of the State
Government in issuing a Government
Order dated 4.12.2020 can be very easily
gathered from a bare look of the provisions
made in the said Government Order. The
intention of the State Government in
issuing Government Order dated 4.12.2020
10 All. Garima Vashishtha Vs. State of U.P. & Ors.
923
is crystal clear that if while entering marks
of different examinations by the candidate
in the application form, any mistake is
committed but by that mistake he is not at
an advantageous stage and on the basis of
incorrect entries he has secured selection,
then his selection should not be disturbed
due to said mistake.

33. The Hon'ble Supreme Court in its
judgment and order dated 29.6.2021
rendered in the case of Rahul Kumar
(supra) has considered the purport of the
provisions made in the Government Order
dated 4.12.2020 and it has been held that
where due to incorrect entries of marks
made in the application form candidate is
not at an advantageous stage, then he is
entitled to protection of the provisions
made in the Government Order dated
4.12.2020 and his selection cannot be
disturbed, whereas if the candidate on the
basis of incorrect entries of marks made in
the application form is at an advantageous
stage, then his appointment is liable to be
cancelled. The relevant portion of the
judgment rendered in the case of Rahul
Kumar (supra) is extracted 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.

34. This court in its judgment and
order dated 15.12.2022 rendered in Writ-A
No.17750 of 2022 (Nandini Baranwal vs.
State of U.P. and others) has dealt with
the issue identical to that of the issue of the
present writ petition. The relevant portion
of the judgment and order dated 15.12.2022
is extracted as under:-

"Having heard the learned counsels
for the parties and having perused the
record, the Court finds that the issue
regarding mistakes committed by the
candidates and the consequences as also
the validity of the Government Order dated
04.12.2020
and
05.03.2021
were
considered by the Apex Court in Writ
924 INDIAN LAW REPORTS ALLAHABAD SERIES
Petition (Civil) No. 322 of 2021 titled as
Jyoti Yadav and another vs. The State of
Uttar Pradesh and others decided on 8th
April, 2021 and in Writ Petition (Civil No.
378 of 2021 titled as Rahul Kumar vs. State
of Uttar Pradesh and others decided on
29th June, 2021. The Apex Court while
upholding the validity of the Government
Order dated 04.12.2020 and 05.03.2021
observed as under:

" We need not consider individual fact
situation as the reading of the G.O and
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
rigor 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."

After the decision of the Apex Court
referred to herein above the issue was
considered by a Special Appellate Bench of
this Court in a bunch of Special Appeals
leading amongst them being Special Appeal
Defective No. 302 of 2020 (Ashutosh Kumar
Srivastava and others vs. State of U.P. and
others).

The Special Appellate Bench while
discussing the law laid down by the Apex
Court in Jyoti Yadav and Rahul Kumar
(Supra) found that the issue had not been
examined by the competent authority in terms
of the observations made by the Supreme
Court in the aforesaid two judgments
interpreting the Government Orders dated
4.12.2022 and 05.03.2021 and that the matter
needed to be re-examined. The impugned
orders rejecting the candidatures were
accordingly set aside and the matter was
remitted to the authority of the district
concerned for re-examination in the light of
the judgment of the Apex Court and to take a
final decision thereon.

The Court has gone through the ratio of
the decision of the Apex Court in the case of
Jyoti Yadav and another (Supra) as also the
case of Rahul Kumar (Supra) and finds that
the petitioner by committing mistake in filling
up her online application form by stating 384
out of 500 and 528 marks out of 700 instead
of 527 out of 700 in graduation had put
herself at a disadvantageous position by
0.006 quality point marks however it would
not alter her merit position in the select list.
Consequently her appointment as Assistant
Teacher was not liable to be cancelled.

In view of the above, the order dated
14.09.2022 passed by the District Basic
Education Officer, Badaun, cancelling the
appointment of the petitioner as Assistant
Teacher in Primary Vidyalaya, Miyanganj
Pracheen, Badaun is set aside. The Writ
Petition stands allowed. the Respondents are
directed to reinstate the petitioner as
Assistant Teacher in the institution in
question and release all arrears of salary
with effect from her date of initial
appointment till date and continue to pay
the petitioner her salary regularly month to
month as and when the same falls due. "

35. When the case of the petitioner is
seen in the light of the aforesaid judgment
rendered by the Hon'ble Supreme Court in
10 All. Garima Vashishtha Vs. State of U.P.