# Vipin Sharma v. State of U.P. & Ors

- **Citation:** (2021) 9 ILRA 576
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-08-27
- **Case number:** Service Single No. 18755 of 2021
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/vipin-sharma-v-state-of-u-p-ors-47449
- **Pages:** 7

## Headnote

A. Service Law - GO dated 05.03.2021 -
Appointment - Cancellation - Incorrect
information given in application form -
Correction sought - Plea of bonafide
mistake, how far permissible - Held, in
view of Clause 17 of the notification of
selection in question wherein it has been
categorically indicated that if any wrong
information has been provided by the
candidate, the same may not be permitted
to correct later on and such condition has
not been assailed by the petitioner - In
view of the decision of Division Bench of
this Court in re; Doli (Supra) the petitioner
may not be permitted to correct the wrong
information - If the candidates are
permitted to correct their mistake done
while filling up the application form in
question whether it is bonafide or not, the
authority concerned would not be able to
conclude the selection process to its
logical end. (Para 15)
Writ Petition dismissed. (E-1)
Cases relied on :-

## Text

576 INDIAN LAW REPORTS ALLAHABAD SERIES
also
considered
by
the
disciplinary
authority which indicates that immediate
superior of the petitioner has indicated that
the petitioner did not take any interest in
discharging his official duties and had got a
lot of work pending. Again, the petitioner
was placed under suspension on 24.9.2018
more or less on the same charges and after
conclusion of the departmental inquiry the
inquiry officer submitted his findings
before
the
disciplinary
authority
on
19.3.2019
recommending
for
major
penalty. Since the disciplinary authority
was conscious about the fact that before
passing the order of major punishment the
petitioner
must
have
been
afforded
sufficient number of hearing, therefore, the
disciplinary authority has admittedly issued
so many letters / notices / show cause
notices seeking explanation from the
petitioner asking for production of relevant
material / evidence which could show the
bonafide of the petitioner but no such
material / document has been produced
before the disciplinary authority, therefore,
the disciplinary authority has passed the
order of dismissal which is contained as
Annexure no. 1 to the writ petition.

29. Considering the entirety of the facts
and circumstances in issue, I do not find that
the impugned order of punishment is
excessive or does not commensurate with the
gravity of mis-conduct inasmuch as the
petitioner was in a habit of habitual
absentism, unauthorized leave, indisciplined
behaviour with superior officers / officials
and not discharging the duties as per
parameters befitting for the government
employees, therefore, on earlier occasions he
was awarded censure entry for the year 199798, 1998-99 vide order dated 20.7.2000 with
serious warning. Again vide order dated
31.5.2004 he was awarded adverse entry and
his two increments of salary has been
withheld. Despite the serious warning having
been given to the petitioner time and again by
the authorities concerned from the very
beginning but instead of improving his
behaviour he indulged in mis-behaviour and
indiscipline with the superior officers /
officials and continued habitual absentism
and proceeded on unauthorized leave without
caring the directions of officers. Therefore,
the severe most punishment of the service
jurisprudence i.e. dismissal which was
awarded to the petitioner does not shock the
conscience of the Court. So far as the
decision making process awarding major
punishment to the petitioner is concerned, I
do not find any flaw or infirmity in such
process and I do not find that such decision
was absurd or perverse. Therefore, I do not
incline to interfere the punishment awarded
to the petitioner.

30. Accordingly, the writ petition is
dismissed being misconceived.

31. No order as to costs.

32. Before parting with, I put a note
of appreciation for Ms. Shama Parveen,
Law Clerk, for making thorough research
on the case laws.
----------
(2021)09ILR A576
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 27.08.2021

BEFORE

THE HON'BLE RAJESH SINGH CHAUHAN, J.

Service Single No. 18755 of 2021

Vipin Sharma ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
9 All Vipin Sharma Vs. State of U.P. & Ors.
577
Sharad Pathak, Shreesh Kumar Mishra Atal

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

A. Service Law - GO dated 05.03.2021 -
Appointment - Cancellation - Incorrect
information given in application form -
Correction sought - Plea of bonafide
mistake, how far permissible - Held, in
view of Clause 17 of the notification of
selection in question wherein it has been
categorically indicated that if any wrong
information has been provided by the
candidate, the same may not be permitted
to correct later on and such condition has
not been assailed by the petitioner - In
view of the decision of Division Bench of
this Court in re; Doli (Supra) the petitioner
may not be permitted to correct the wrong
information - If the candidates are
permitted to correct their mistake done
while filling up the application form in
question whether it is bonafide or not, the
authority concerned would not be able to
conclude the selection process to its
logical end. (Para 15)
Writ Petition dismissed. (E-1)
Cases relied on :-
1. Special Appeal Defective No. 226 of 2021;
Doli Vs St. of U.P. & ors. decided on 08.04.2021
2. Amarjeet Singh & ors. Vs Devi Ratan & ors.;
(2010) 1 SCC 417

(Delivered by Hon'ble Rajesh Singh
Chauhan, J.)

1. Heard Sri Sharad Pathak, learned
counsel for the petitioner, Sri Ran Vijay
Singh, learned counsel for the opposite
party nos.1, 2, 3 & 5 and Sri Shivam
Sharma, learned counsel for the opposite
party no.4.

2. By means of the writ petition, the
petitioner has assailed the order dated
19.06.2021 passed by opposite party no.4
by means of which the petitioner's
appointment on the post of Assistant
Teacher in 69,000 Primary Teacher has
been cancelled. The petitioner has also
assailed the decision dated 19.06.2021
passed by opposite party no.5 by means of
which the District Selection Committee has
taken
decision
of
cancelling
the
appointment of the petitioner.

3. The precise submission of learned
counsel for the petitioner is that while
filling up the application form, he indicated
his marks for Intermediate education
passed in the year 2009 as 352 out of 500
in place of 332 out of 500 marks. As soon
as the petitioner came to know about such
bonafide mistake, he has requested the
authority concerned to permit the petitioner
to make such correction saying that he may
provide original certificate/marksheet of
the interim examination.

4. Learned counsel for the petitioner
has further submitted that had the petitioner
been filled up the correct marks of
Intermediate as 332 out of 500, he would
have been selected for the post of Assistant
Teacher. Further, filling up more marks
than he has obtained in the Intermediate
was not extended any undue advantage to
the petitioner, therefore, his candidature
should have not been rejected on the basis
of Government Order dated 05.03.2021
(Annexure No.26).

5. Learned counsel for the petitioner
has also submitted that the appointment of
any Assistant Teacher can be cancelled on
the basis of Government Order dated
05.03.2021, if any marks have been filled
up by the candidate without having any
documentary evidence to that effect and
that information provides any undue
578 INDIAN LAW REPORTS ALLAHABAD SERIES
advantage to such candidate but in the
present case the petitioner is having his
original mark sheet and certificate of the
Intermediate Examination and the marks so
filled up by the petitioner is not extending
any undue advantage, in as much as he
would have been selected if he had filled
up the correct marks. Therefore, learned
counsel for the petitioner submitted that in
the interest of justice petitioner could have
been permitted to correct the bonafide
mistake, thereby permitting the petitioner
to discharge the functions for which
selection letter was issued to him.

6. Learned counsel for the petitioner
lastly submitted that when the petitioner
has been selected on the post of Assistant
Teacher and has been permitted to submit
his joining on such post then his
appointment could not have been cancelled
on the basis of principle of estopple and the
bonafide mistake of the petitioner might be
permitted to be condoned.

7. Per contra, Sri Ran Vijay Singh and
Sri Shivam Sharma as learned counsel for
the
opposite
parties
have
cited
the
judgment of Apex Court in the case of
(Rahul Kumar Vs. State of U.P. & Ors.)
referring para-4 thereof, whereby the
Hon'ble Apex Court has considered the
Government Order dated 05.03.2021 and
vide para-7, the said Government Order has
been upheld which reads as under:-

"4. Subsequently, the State issued
Government Circular dated 05.03.2021 (''the
Circular', for short) which further elaborated
paragraph 1 of Point No.2 as stated above.
The relevant portion of the Circular was to
the following effect:

"2.
In
continuation
of
the
recommendations dated 13-12-2020 of the
Committee which were brought to your
notice vide the letter dated 15-01-2021, the
opinion
of
the
legal
and
personnel
department were sought. On the basis of the
recommendations of the legal and personnel
department, the following have been decided
to be acted upon:-

(1) In context of Recommendations
of the Committee at Point-1 in reference to
more marks mentioned:-

The candidates who has submitted
the application form on the basis of
certificate/marksheet available with them and
had mentioned more marks but the marks
were subsequently changed after scrutiny/reevaluation/back-paper
by
the
university/issuing authority on its own, those
candidates cannot be held to be responsible
for changing or wrongfully mentioning marks
in the application form as they did not have
any option but to fill the marks mentioned in
the certificate/marksheet available with them
at the relevant time of filing-up of the
application form. Such candidate, if they
have obtained more quality points than the
last candidate selected in the category in the
district,
then
he/shall
be
given
the
appointment letter in that district. If any such
candidate has lesser quality points than the
last candidate selected in a particular district
but more than the quality point than the last
selected candidate in that category in the
state list then the details of such candidate
shall be provided to the administration by the
Director, Basic Education. Further actions
will be taken in that regard by the
administration.

Where a candidate, without any
documentary basis, has mentioned more
marks than what he has obtained or has
mentioned less maximum marks than what
the actual was, his/her selection/candidature
shall be cancelled."

a) According to the Circular,
wherever more marks were claimed as a
result of subsequent changes after scrutiny/
9 All Vipin Sharma Vs. State of U.P. & Ors.
579
re-evaluation/back-paper
by
the
university/issuing authority "on its own",
the candidate could not be held responsible
for discrepancy or wrongful mentioning of
the marks and a benefit was therefore
sought to be conferred upon the candidate
which was not contemplated by the G.O.

b) The last part of the quoted
portion of the Circular emphasized that
where a candidate had mentioned "more
marks" than what he had actually obtained
or had mentioned "lesser maximum marks"
than what the total marks for the
examination in question were allocated, the
selection/candidature of the candidate
would stand cancelled.

c)
The
underlying
principle,
therefore, is quite evident that by quoting
more marks than what the candidate had
actually obtained or by specifying lesser
total marks for the examination than those
allocated
for
the
examination,
the
candidate would essentially be claiming an
advantage to which he was not entitled, in
case the discrepancy were to go unnoticed.

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."

8. They referred another judgment of
Hon'ble Apex Court in (Jyoti Yadav &
Anr. Vs. State of U.P. & Ors.) referring
para-13 to 15, whereby the Government
Order
dated
05.03.2021
have
been
clarified:-

"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
580 INDIAN LAW REPORTS ALLAHABAD SERIES
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 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 presciption 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."

9. Both the learned counsel for the
opposite parties have submitted that vide
Clause 17 of the notification pursuant to
which the selection in question has been
completed,
it
has
been
categorically
indicated that if any candidate provides any
wrong information, he/she may not be
permitted to correct the same, so such
candidate must verify the information
carefully before finalizing the same.
Therefore, the wrong information so given
by the petitioner would definitely cause
prejudice to him in view of Clause 17 of
the notification in question.

10. So as to strengthen the aforesaid
contention Sri Ran Vijay Singh, learned
counsel for the opposite party has placed
reliance on the judgment and order dated
08.04.2021 passed by the Division Bench
in this Court in Special Appeal Defective
No.226 of 2021 (Doli Vs. State of U.P. &
Ors.) referring para-8 thereof, whereby the
Division
Bench has
held
that
after
submitting the form such correction may
not be permitted in Clause-17 of the
notification. For the convenience, Para-8 is
being reproduced hereinunder:-

"8. Having noticed the two
Division Bench decisions of this Court, the
issue which arises for our consideration is
whether a candidate who is put to notice
that before uploading the data she must
cross check the data with her testimonials
and obtain a print-out thereof before
uploading and, once it is uploaded, she
would not be allowed to correct a mistake,
could seek a writ of mandamus upon the
authorities to allow her to correct the
mistake. The answer to it would depend
upon existence of enabling provisions
found in a statute or rule or executive
instructions. No statutory provision or rule
or instruction has been shown to us which
may allow such correction despite clear
instructions
to
the
contrary
in
the
notification. It has also not been shown to
us that the authorities have allowed such
corrections to other candidates. It is well
settled that a mandamus is ordinarily to be
issued upon a public authority to perform
its duty or obligation cast upon it by law. A
9 All Vipin Sharma Vs. State of U.P. & Ors.
581
person seeking a writ of mandamus must
therefore demonstrate that a right inheres
in him that casts a corresponding duty /
obligation upon the public authority or
State or its instrumentality to perform, or
desist from performing, such act for which
a writ of mandamus is sought. That right
may be derived, inter alia, from the
Constitution of India, a statute or a rule or
an executive instruction. The petitioner has
failed to demonstrate that any such right
inheres in her under a Statute or rule or
executive instructions. Whether such right
inheres in her under the Constitution of
India needs to be examined. Interestingly,
the petitioner has not challenged the
instructions contained in clause 17 of the
notification as violative of Part III of the
Constitution of India or any statutory
provision or rule. Otherwise also, in
matters relating to public examinations,
such strict instructions as are found in
clause 17 of the notification are desirable
to prevent foul play and to ensure
expeditious conclusion of the recruitment
process, inasmuch as if candidates are
allowed to correct/alter data their merit
position would alter accordingly, resulting
in utter confusion. Therefore, ex facie, such
instructions do not appear arbitrary. In
these circumstances, we are of the
considered view, the appellant has failed to
make out a case for issuance of a writ in
the nature of mandamus commanding the
respondents to rectify the mistake made by
her in her online submission."

11. Lastly, both the learned counsels
for the opposite parties have cited dictum in
(Amarjeet Singh & Ors. Vs. Devi Ratan &
Ors.) reported in (2010) 1 SCC 417
submitting that since the petitioner has not
assailed the Government Order dated
05.03.2021 which is the foundation of
cancellation of the appointment of the
petitioner, therefore, the consequential
order may not be quashed unless the main
order is not assailed.

12. Learned counsel for the opposite
parties
drew
attention
towards
the
Annexure No.3 of the petition wherein
undertaking of the petitioner has been
enclosed showing that petitioner has given
undertaking that in case if any wrong
information is provided, his selection can
be cancelled.

13. Shri Shivam Sharma, learned
counsel for the opposite party has also drew
attention towards Annexure No.35 of the
writ petition which is an order dated
01.07.2021 passed by this Court submitting
that learned counsel for the petitioner is
taking contrary stand in the present case to
the stand taken in the case of (Sri Chandra
Shekar Vs. State of U.P. & Ors.) passed by
this Court on 27.07.2021.

14. I have heard learned counsel for
the parties, perused the material available
on record and the decisions so cited.

15. Since the appointment of the
petitioner has been cancelled on the basis
of Government Order dated 5.3.2021 which
has been confirmed by the Apex Court in
re; Rahul Kumar (Supra) clarified in re;
Jyoti
Yadav
(Supra),
therefore,
no
interference may be required in the
cancellation order. Besides, in view of
Clause 17 of the notification of selection in
question wherein it has been categorically
indicated that if any wrong information has
been provided by the candidate, the same
may not be permitted to correct later on and
such condition has not been assailed by the
petitioner. Not only the above, the
petitioner has himself given undertaking
which is contained in Annexure No.3 with
582 INDIAN LAW REPORTS ALLAHABAD SERIES
the writ petition, therefore, in view of the
decision of Division Bench of this Court in
re; Doli (Supra) the petitioner may not be
permitted to correct the wrong information.
To me, if the candidates are permitted to
correct their mistake done while filling up
the application form in question whether it
is bonafide or not, the authority concerned
would not be able to conclude the selection
process to its logical end, therefore, the
Clause-17 in the notification has been
incorporated. So far as the argument of
learned counsel for the petitioner regarding
the principle of estoppel having been
imposed
against
the
cancellation
of
appointment of the petitioner vide order
dated 19.06.2021 after permitting him to
serve on the post in question is concerned, I
am of the considered opinion that to meet
out such eventuality the Government Order
dated
5.3.2021
has
been
issued.
Admittedly, neither the Government Order
dated 5.3.2021 has been assailed nor
Clause-17 of the notification has been
assailed by the petitioner, therefore, the
competent authority may not be restrained
to
issue
order
of
cancellation
of
appointment of the petitioner on the basis
of principle of estoppel.

16. Having heard learned counsel for the
parties and having perused the material
available on record and the case laws so cited
by learned counsel for the parties, I do not find
any infirmity or illegality in the orders
impugned dated 19.06.2021 passed by the
authorities, therefore, the writ petition is
dismissed.

17. No order as to cost.

18. However, it is provided that since the
petitioner has admittedly discharged his duties
on the post of Assistant Teacher, therefore, no
recovery shall be made from him for the
period he has discharged his duties.
----------
(2021)09ILR A582
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 21.09.2021

BEFORE

THE HON'BLE RAJESH SINGH CHAUHAN, J.

Service Single No. 21142 of 2021

Rajeev Kumar Saxena ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Jayshanker Shukla

Counsel for the Respondents:
C.S.C.

A. Service Law - Transfer - Nature and
Scope of interference - Joining submitted
in pursuance of transfer - Cancellation of
transfer order - No opportunity of hearing
- Validity challenged - Transfer is an
incidence of service - Courts do not
normally interfere such orders unless such
order has been passed in a violation of
rules or is an outcome of malice in law -
Held, both these grounds are missing in
this case - Transfer policy is only a
guideline and such guideline may not be
executed through writ court unless there
is any statutory violation, therefore, the
plea of the petitioner that suspending the
transfer order dated 12.7.2021 would be
violative
of
transfer
policy
is
misconceived. (Para 6)
Writ Petition dismissed. (E-1)
Cases relied on :-
1. Service Single No. 21036 of 2021; Avnesh
Kumar Vs St. of U.P. & ors. decided on
20.9.2021