# Vijay Gupta v. State of U.P. & Ors

- **Citation:** (2023) 1 ILRA 1284
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-12-05
- **Case number:** Writ-A No. 19409 of 2020
- **Bench:** Om Prakash Shukla
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/vijay-gupta-v-state-of-u-p-ors-49116
- **Pages:** 7

## Headnote

Law
-
Recruitment
-
Disparity in declaration - Rectification of
error in
the
application
form
-
No
candidate should be permitted to rectify
any mistake committed by him/her while
filing up online application form so as to
have an impact on the smooth conducting
of the selection process and to avoid any
alteration or change in the inter se merit
of the candidates which would eventually
lead to a change in the final merit/select
list. (Para 7)

B. 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. (Para 9)

In case a candidate furnishes some information
in his/her online application form which,
although not in commensurate to the actual
information, but does not put him/her to any
advantageous position, such misinformation, in
seclusion, may not be treated as a ground for
rejecting the candidature. (Para 10)

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. (Para 12)

C. 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. (Para 12)

The controversy in these present writ petitions
is
concerning
some
discrepancies/error
mentioned in the application form relating to
"Shiksha Mitra", wherein in some petitions the
weightage marks for working as shikha Mitra
had not been given appropriately, whereas in
some
cases
the
petitioners
have
been
erroneously considered as Shiksha Mitra and
were although initially given appointment,
however, subsequently their appointment were
cancelled and consequential recovery orders
were
issued
against
them.
These
discrepancies/error have crept either due to
non-mentioning or clicking the wrong key/code,
leading to erroneous weightage given for
working as Shiksha Mitra or erroneously opting
for BTC through regular channel or BTC through
correspondence. (Para 11)

Hon'ble Court has observed that it is evident
that the issue has not been examined by the
competent
authority
in
terms
of
the
observations made by the SC. Therefore,

- All impugned orders rejecting the
candidature of the candidates on account of the
error committed by them relating to Shiksha
Mitra are set-aside;

- 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;
1 All. Vijay Gupta Vs. State of U.P. & Ors.
1285

- These cases are remitted to the authority
of the district concerned for re-examination
thereof (v) The entire process shall be
completed by the competent authority within a
period of eight weeks from the date of receipt of
a copy of this order, considering the respective
writ petition as representation of the candidate
concerned;

- 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.

- Any recovery proceedings, initiated, by
the concerned authority shall be kept in
abeyance
and
shall
be
subject
to
the
decision/outcome of competent authority of the
district concerned. (Para 16)

It is made clear that this Court has not
expressed its view on the merits of any
individual case and the competent authority of
the district co

## Text

1284 INDIAN LAW REPORTS ALLAHABAD SERIES
made by respondent no.1. The writ petition
is allowed, in terms of the direction issued
above. No order as to costs.
----------
(2023) 1 ILRA 1284
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 05.12.2022

BEFORE

THE HON'BLE OM PRAKASH SHUKLA, J.

Writ-A No. 19409 of 2020
with other connected cases

Vijay Gupta ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Surya Prakash Singh

Counsel for the Respondents:
C.S.C.

A.
Education
Law
-
Recruitment
-
Disparity in declaration - Rectification of
error in
the
application
form
-
No
candidate should be permitted to rectify
any mistake committed by him/her while
filing up online application form so as to
have an impact on the smooth conducting
of the selection process and to avoid any
alteration or change in the inter se merit
of the candidates which would eventually
lead to a change in the final merit/select
list. (Para 7)

B. 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. (Para 9)

In case a candidate furnishes some information
in his/her online application form which,
although not in commensurate to the actual
information, but does not put him/her to any
advantageous position, such misinformation, in
seclusion, may not be treated as a ground for
rejecting the candidature. (Para 10)

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. (Para 12)

C. 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. (Para 12)

The controversy in these present writ petitions
is
concerning
some
discrepancies/error
mentioned in the application form relating to
"Shiksha Mitra", wherein in some petitions the
weightage marks for working as shikha Mitra
had not been given appropriately, whereas in
some
cases
the
petitioners
have
been
erroneously considered as Shiksha Mitra and
were although initially given appointment,
however, subsequently their appointment were
cancelled and consequential recovery orders
were
issued
against
them.
These
discrepancies/error have crept either due to
non-mentioning or clicking the wrong key/code,
leading to erroneous weightage given for
working as Shiksha Mitra or erroneously opting
for BTC through regular channel or BTC through
correspondence. (Para 11)

Hon'ble Court has observed that it is evident
that the issue has not been examined by the
competent
authority
in
terms
of
the
observations made by the SC. Therefore,

- All impugned orders rejecting the
candidature of the candidates on account of the
error committed by them relating to Shiksha
Mitra are set-aside;

- 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;
1 All. Vijay Gupta Vs. State of U.P. & Ors.
1285

- These cases are remitted to the authority
of the district concerned for re-examination
thereof (v) The entire process shall be
completed by the competent authority within a
period of eight weeks from the date of receipt of
a copy of this order, considering the respective
writ petition as representation of the candidate
concerned;

- 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.

- Any recovery proceedings, initiated, by
the concerned authority shall be kept in
abeyance
and
shall
be
subject
to
the
decision/outcome of competent authority of the
district concerned. (Para 16)

It is made clear that this Court has not
expressed its view on the merits of any
individual case and the competent authority of
the district concerned is at liberty to take an
independent decision. (Para 17)

Writ petitions disposed of. (E-4)

Precedent followed:

1. Jyoti Yadav & anr. Vs The St. of U.P. & ors.,
Writ Petition No. 322 of 2021, decided on
08.04.2021 (Para 8)

2. Rahul Kumar Vs St. of U.P. & ors., Writ
Petition No. 378 of 2021, 29.06.2021 (Para 9)

3. Archana Chauhan Vs St. of U.P. & ors., Civil
Appeal No. 3068/2020 (Para 10)

4. Ashutosh Kumar Srivastava & ors. Vs St. of
U.P. & ors., Special Appeal Defective No. 302 of
2020 (Para 14)

(Delivered by Hon'ble Om Prakash Shukla, J.)

1. Heard Shri Abhishek Khare, Ms.
Aahuti Agarwal, Shri Virendra Kumar
Dubey, Shri Deepak Singh, Shri P.K.
Mishra, Advocates as learned counsel for
their respective petitioners and Shri Ran
Vijay Singh, learned Additional Chief
Standing Counsel for U.P. Basic Education
Board and perused the record.

2. The present bunch of writ petitions
engaging the attention of this Court has
been
filed
by
petitioners,
whose
candidature for the post of Assistant
Teachers in primary school in pursuance of
the advertisement issued by the State of
Uttar Pradesh in the year 2019 were either
not found proper due to inaccuracy and/or
discrepancy between the online application
and the actual status of the said candidate,
or, even if the candidature of these
petitioners were considered and these
petitioner's found their way to the final
selection list, however subsequently, the
department,
finding
disparity
in
the
declaration made in the online application
and the actual status of the said candidate,
their recruitment were cancelled and
consequent recovery were directed by the
respondent.

3. Both the sides have relied on
various judgments/orders of this court as
well as the Hon'ble Apex Court to buttress
their point of submission and drive home
their own respective cases and each of them
have tried to convey that the present case is
a covered matter and as such the same can
be finally decided.

4. The common and germane
background to the deciding of the issues
involved in these writ petitions lie in a
narrow compass.

5. The state of Uttar Pradesh issued a
notification to fill up 69000 posts of
Assistant Teachers in Primary Schools in
various districts of the state, pursuant to
which an Assistant Teacher Recruitment
Examination, 2019 was conducted by the
1286 INDIAN LAW REPORTS ALLAHABAD SERIES
Examination
Regulatory
Authority,
Prayagraj. As per the recruitment process,
candidates were to apply online, who were
allotted registration number and assigned
roll
number
for
appearing
in
the
examination, for which the results were
declared on 12.05.2020. After declaration
of result, the U.P. Basic Shiksha Parishad
invited online applications from successful
candidates
for
counselling
and
appointment.

6. Pertinently, the aforesaid ambitious
recruitment scheme of the state of Uttar
Pradesh was mired with litigations having
been filed before this Court as well as the
Hon'ble Supreme Court, which led to
issuance of Government order dated 4th of
December,
2020
in
clarification
and
another letter dated 05.03.2021 issued by
the
Additional
Chief
Secretary,
Government of Uttar Pradesh, relating to
the appointment of assistant Teachers.

7. A harmonious reading of both the
Government orders would lead one to an
impeccable conclusion that both these
orders have been issued with a purpose,
which inter-alia state that no candidate
should be permitted to rectify any mistake
committed by him/her while filing up
online application form so as to have an
impact on the smooth conducting of the
selection process and to avoid any
alteration or change in the inter se merit of
the candidates which would eventually lead
to a change in the final merit/select list.

8. Although various orders and
judgements of this Court have been cited
by both the parties, however this Court
finds that apparently there are two
judgments of the Hon'ble Apex Court,
which holds the ground as on today. The
communication dated 05.02.2021 was a
subject matter of interpretation before the
Hon'ble Apex Court in the case of Jyoti
Yadav & Anr. V/s The State of Uttar
Pradesh & Ors. (Writ Petition No. 322 of
2021) decided along with 8 other writ
petitions, wherein the Hon'ble Court vide
its order dated 8th of April, 2021 held as
follows:

"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 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
1 All. Vijay Gupta Vs. State of U.P. & Ors.
1287
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."

9. Thus, the Hon'ble Apex Court held
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. To the same effect is the
judgment dated 29th of June, 2021 passed
by the Hon'ble Apex Court in the case of
Rahul Kumar vs. State of Uttar Pradesh and
others, (Writ Petition No. 378 of 2021). It
would be profitable to quote the relevant
paragraph nos. 7, 8 and 9 of the aforesaid
judgment, which 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. "
1288 INDIAN LAW REPORTS ALLAHABAD SERIES

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."

10. Both the judgements, succinctly,
denote that, in case a candidate furnishes
some
information
in
his/her
online
application form which, although not in
commensurate to the actual information,
but
does
not
put
him/her
to
any
advantageous
position,
such
misinformation, in seclusion, may not be
treated as a ground for rejecting the
candidature. As a matter of fact, the
judgment passed by the Hon'ble Apex
Court in Archana Chauhan V/s State of
Uttar Pradesh & ors. (Civil Appeal No.
3068/2020) also directs the rectification of
the mistake keeping in view that the error
on the part of the said candidate did not, in
any way, enure to her advantage but was to
her detriment.

11. The aforesaid judgments of the
Hon'ble
Supreme
Court
relate
to
discrepancy in the marks mentioned in the
online application filled by the candidates
and their urge to rectify the same, which
has been interpreted by the Apex Court in
the
aforesaid
terms.
However,
the
controversy in these present writ petitions
is concerning some discrepancies/error
mentioned in the application form relating
to "Shiksha Mitra", wherein in some
petitions the weightage marks for working
as shikha Mitra had not been given
appropriately, whereas in some cases the
petitioners
have
been
erroneously
considered as Shiksha Mitra and were
although
initially
given
appointment,
however, subsequently their appointment
were cancelled and consequential recovery
orders were issued against them. These
discrepancies/error have crept either due to
non-mentioning or clicking the wrong
key/code, leading to erroneous weightage
given for working as Shiksha Mitra or
erroneously opting for BTC through regular
channel or BTC through correspondence.

12. This Court finds that the issue
relating to any kind of rectification of error
in the application form by any candidate of
Assistant
Teacher
Recruitment
Examination, 2019, stands settled by the
aforesaid judgments of the Hon'ble Apex
Court. The Hon'ble Apex Court have
clearly interpreted the Government orders
and have drawn a Lachman Rekha for
considering any kind of error, by holding
that the rigour of the G.O. and the Circular
made it clear that;

(a) 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.

(b) 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.

13. From the facts of the bunch of
writ petitions, as has been rightly pointed
by some of the counsels, it is evident that
the issue has not been examined by the
competent authority in terms of the
1 All. Vijay Gupta Vs. State of U.P. & Ors.
1289
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 as in Writ Petition-A No.
16122/2021 (Shipra Yadav v/s State of
U.P), is prior to the aforesaid judgments.

14. This Court further finds that a
Division Bench of this court in similar
circumstances, having arrived at a decision
that the candidature of the petitioners have
been rejected without giving due regard to
the judgements of the Hon'ble Apex Court,
the Hon'ble Division Bench in a bunch of
24 matters, the lead case being Ashutosh
Kumar Srivastava & Others V/s State of
Uttar Pradesh & Ors. (Special Appeal
Defective No. 302 of 2020), has inter-alia
given the following directions:

"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 Government Orders dated
04.12.2020 and 05.03.2021, the matter
needs to be re-examined.

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 grievance before the Court."

15. In view of the authoritative
decision passed by the Hon'ble Division
Bench, this Court does not find any reasons
as to why the benefit extended by the
Division Bench to the petitioners in that
matter, should not be extended to the
petitioners of the present bunch of matters.

16. In view of the above, the present
bunch of matters are disposed of with the
following directions:

(i) The issue relating to Shiksha Mitra
be re-examined by the competent authority
in the light of the observations made by the
Supreme Court in the aforesaid judgments;

(ii) All impugned orders rejecting the
candidature of the candidates on account of
the error committed by them relating to
Shiksha Mitra are set-aside;

(iii) 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
1290 INDIAN LAW REPORTS ALLAHABAD SERIES
process which is not the spirit of the order
passed by this Court;

(iv) These cases are remitted to the
authority of the district concerned for reexamination
thereof
considering
the
aforesaid judgment of the Supreme Court
and to take a final decision thereon.

(v) The entire process shall be
completed by the competent authority
within a period of eight weeks from the
date of receipt of a copy of this order,
considering the respective writ petition as
representation of the candidate concerned;

(vi) 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.

(vii)
Any
recovery
proceedings,
initiated, by the concerned authority shall
be kept in abeyance and shall be subject to
the
decision/outcome
of
competent
authority of the district concerned.

17. With the aforesaid directions, the
writ petitions are disposed of. It is made
clear that this Court has not expressed its
view on the merits of any individual case
and the competent authority of the district
concerned is at liberty to take an
independent decision within the parameters
fixed by the Judgment of the Hon'ble Apex
Court as well as the Division Bench of this
Court.

18. In the peculiar facts of the present
case, there shall be no order as to cost.
----------
(2023) 1 ILRA 1290
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 22.12.2022

BEFORE
THE HON'BLE MANOJ KUMAR GUPTA, J.
THE HON'BLE JAYANT BANERJI, J.

Writ Tax No. 1511 of 2022

M/S Jaiprakash Thekedar ...Petitioner
Versus
Commissioner, Commercial Taxes & Anr.
 ...Respondents

Counsel for the Petitioner:
Ms. Pooja Talwar

Counsel for the Respondents:
C.S.C.

Civil Law - Uttar Pradesh Goods & Services
Tax Act, 2017- Registration of petitioner-firm
was cancelled - Show cause notice was given
without the date of appearing - Ex parte
decision held illegal, void and a nullity in the
eyes of law- Petitioner allowed to the Revenue
to proceed. (E-9)

List of Cases cited:

Pushpam Reality & ors. Vs St. Tax Officer & ors.

(Delivered by Hon'ble Manoj Kumar
Gupta, J. & Hon'ble Jayant Banerji, J.)

1. Heard Ms Pooja Talwar, learned
counsel for the petitioner and Sri Ankur
Agarwal, learned counsel for the revenue.

2. The petitioner is aggrieved by
cancellation of the registration of the
petitioner-firm under the provisions of the
Uttar Pradesh Goods and Services Tax Act,
2017 and the coercive action sought to be
taken against the petitioner as a result of
cancellation of the registration.

3. The petitioner was given a show
cause notice on 31.08.2019 requiring the
petitioner to submit reply within seven
working days from the date of service of
the notice. The notice further mentions that
if the petitioner fails to furnish reply within