Dinesh Kumar @APPELLANT@Hash State of Rajasthan & Ors.

The petitioner has preferred this writ petition under Article 226 of the Constitution of India claiming the following reliefs:

“It is therefore, most humbly and respectfully prayed that this writ petition may kindly be allowed with costs and by an appropriate writ, order or

direction;

The respondents may very kindly be directed to consider representations (Annex.3, 5, 7& 8) submitted by the petitioner in positive terms and allow

rectification of inadvertent bona fide human error in his application form by changing gender of the petitioner from ‘Female to that of the

‘Male’;

The respondents may also kindly be directed to consider candidature of the petitioner by allowing him to participate in the counseling process and

accordingly, pass appointment order in favour of the petitioner if he is otherwise found eligible and meritorious.â€​

The controversy pertains to recruitment to the post of Teacher Grade-III Level-I (Non-TSP Area) General Teacher, in pursuance of the

advertisement of 2018 whereby, the petitioner has been deprived from his candidature on account of the fact that he wrongly filled his gender as

‘female’ when he was ‘male’.

3.1 Learned counsel for the petitioner states that the controversy involved in this matter stands covered by the judgment rendered by this Hon’ble

Court in Manju Choudhary. Vs. State of Rajasthan & Ors. (S.B. Civil Writ Petition No.2294/2015) decided on 14.5.2015, which reads as under:

“The matter comes up today for consideration of the second stay application filed on behalf of the petitioner. With the consent of the parties, the

writ petition is being heard and decided today itself.

The respondents invited online applications for recruitment to the posts of Teacher Grade-III by advertisement issued in the year 2013. The petitioner

filled the online application forms but by mistake, while filling the gender category, the petitioner mentioned her gender as ‘male’ instead of

‘female’.

By way of the instant writ petition, the petitioner has approached this Court praying that the authorities be directed to permit the petitioner to rectify

the gender category in the online application form so as to remove the apparent anomaly.

This Court by an interim order dated 10.3.2015 directed the respondents to allow the petitioner to participate in the ongoing selection process

considering her to be in O.B.C. (female) category. It is not disputed that the petitioner stands in merit pursuant to the qualifying exam. It is further not

in dispute that the online application form bore the petitioner’s photograph and it is clearly visible therefrom that the applicant is female.

Copies of the testimonials were also annexed with the hard copy of the application form which also clearly demonstrate that the petitioner is a lady.

The petitioner submitted a rectification application to the appropriate authority on 14.10.2013 i.e. just a few days after the online application was

submitted. The error in filling the online application form was apparently inadvertent and looking to the fact that the online application form itself bore

the petitioner’s photograph and as the testimonials and documents filed along with the hard copy of the online application form clearly

demonstrated the fact that the petitioner is a lady, the error in filling the online application form should have been ignored and the respondents should

have permitted the petitioner to rectify the inadvertent error.

Consequently, the instant writ petition deserves to be and is hereby allowed. The respondents are directed to treat the petitioner in O.B.C. (female)

category. If the petitioner stands in merit pursuant to the selection process, she shall be afforded appointment. She shall be accorded seniority at the

bottom of the seniority list just below the last selected candidate. She will be entitled to actual monetary benefits from the date of joining on the post.

For the earlier period, she will be entitled to only notional benefits.

Second stay application also stands disposed of. No order as to cost.â€​

3.2 Learned counsel for the petitioner has also relied upon the judgment rendered by the Division Bench of this Hon’ble Court at Jaipur Bench in

Kavita Choudhary. Vs. The Registrar (Examination), Rajasthan High Court, Jodhpur & Anr. (D.B. Civil Special Appeal (Writ) No.1700/2017), which

reads as under:

“1. Learned counsel for the respondents appears on advance copy of the writ-appeal being served.

Heard learned counsel for the parties.

On 18.02.2017 an advertisement was issued invitingapplications for the post of LDC in different District Judgeships and District Legal Services

Authority. The advertisement cautioned the applicants to be careful while submitting their applications on-line and ensure that the form was correctly

filled up.

The appellant claims to be a member of an Other BackwardClass and while filling up the on-line form she wrongly clicked at the option “OBC

Creamy Layerâ€. This made her disentitled to the benefit of being treated as a candidate in the OBC category, for the reason a member of an Other

Backward Class, if falling within creamy layer, would not entitle her to the benefit of reservation.

When the result was declared the appellant found that she hadsecured 158 marks in the written examination and the last female OBC candidate

selected had secured 157 marks. She then realised her mistake.

Vide impugned decision dated 27.10.2017 the view taken bythe learned Single Judge is that being an educated person, the appellant ought to have

been careful.

To err is human. We do not note the second part: To forgive isdivine.

Mistakes can be of two kinds. First kind would be wherenobody is affected by a mistake. The second is where a third party is affected by a

mistake.

The difference in the two mistakes would be that whereasrectification of the first would cause no prejudice, rectification of the second would cause

a prejudice.

We find in the decisions dated 31.07.2013 in D.B.S.A.W No.875/2012, State of Rajasthan Vs. Datar Singh, dated 11.10.2017 in S.B.C.W.P

No.7159/2017, Dinesh Kumar Mahawar Vs. RPSC & Ors., dated 27.01.2017 in S.B.C.W.P No.906/2017, Shimala Jat Vs. State of Rajasthan & Ors.,

dated 24.11.2016 in S.B.C.W.P No.15654/2016, Sapana Kumari Vs. State of Rajasthan & Ors., dated 31.07.2017 in W.P.(Civil) No.3721/2017,

Arkshit Kapoor Vs. Union of India & Ors., dated 31.07.2017 in W.P. (Civil) No.11642/2016, Ajay Kumar Mishra Vs. Union of India & Ors., passed

by this Court and the Delhi High Court, the consistent view taken is that a bonafide mistake which does not affect a third party right should be allowed

to be cured.

We dispose of the appeal directing that the appellant betreated as an OBC Non-Creamy Layer candidate and we permit her to participate in the

further selection process. Needless to state the respondents would be entitled to verify the certificate submitted by the appellant.

Being informed that the type test is scheduled for 02.11.2017 we direct that the appellant be issued an Admit Card entitling her to take the type

test tomorrow i.e. 02.11.2017. The Admit Card be issued today itself.

The appeal is disposed of setting aside the impugned orderdated 27.10.2017 and allowing the writ petition filed by the appellant.â€​

Learned counsel for the respondents is not in a position to refute the above position.

The only relief claimed by the petitioner is that his gender was erroneously mentioned in the application form and while he was male, it was written

as female. The aforesaid precedent law clearly apply to the present case.

For the aforesaid reasons, the present writ petition is allowed and the respondents are directed to consider the petitioner in the male category in

accordance with his merit and eligibility otherwise for appointment on the post of Teacher GradeIII Level-I Non-TSP area General Teacher, 2018.