Naresh Kumar Nayak @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:

“A. By an appropriate writ order or direction, the respondents may kindly be directed to allow the petitioner to participate in the physical efficiency

process/selection process or any further selection process for the post of Prison Guard/Jail Warder (Jail Prahari) in pursuance of the advertisement

dated 29.10.2015 (Annex.2) with all consequential benefits.

B. By an appropriate writ, order or direction, therespondents may kindly be directed to give appointment to the petitioner on the post of Prison

Guard/Jail Warder (Jail Prahari) in pursuance of the advertisement dated 29.10.2015 (Annex.2) with all consequential benefits, if they stand in the

merit.

C. Any other appropriate writ, order or direction whichthis Hon’ble Court may deem just and proper in the facts and circumstances of the case

may kindly be passed in favour of the petitioner.

D. Writ petition filed by the petitioner may kindly beallowed with costs.â€​

Learned counsel for the parties agree that the matter is squarely covered by the judgment passed by this Court in the matter Shakti Singh

Chouhan & Anr. Vs. State of Rajasthan & Ors. (S.B. Civil Writ Petition No. 4119/2018) decided on 19.04.2018. The said judgment reads as under :-

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

“1. By an appropriate writ order or direction, to the respondent may kindly be directed to consider the candidature of the petitioners for the post of

Jair Warders. In the category to TSP unreserved in pursuance of the advertisement year, 2015.

By an appropriate writ, order or direction, therespondents may kindly be directed to afford the petitioners appointment on the post of Jail Warders in

the category of TSP unreserved with all consequential benefits in pursuance of the advertisement year 2015 if otherwise he stands in merit.

By an appropriate writ, order or direction, therespondents may kindly be directed to provide the benefit of notification dated 16.06.2013 consider

candidature of petitioners in TSP unreserved category in pursuance of notification dated 16.06.2013.

Any other order or direction, which this Hon’ble Court deemed just and proper be passed in favour of the petitioner.â€​

Brief facts of this case, as noticed by this Court, are that the petitioner applied for the post of Jail Warders (Jail Prahari) in pursuance of

recruitment process initiated vide advertisement of the year 2015. The petitioners stand in the merit of TSP unreserved category having more than the

cut-off marks.

The core issue involved in this case is that in the application form itself, which is Annexure-2 of the writ petition, there was a column which required

the petitioner to furnish the name of the Tehsil of TSP area. The name of the Tehsil of TSP area was by mistake filled as NA (not applicable) by the

petitioner in the application form.

Learned counsel for the petitioner has, however, pointed out that such information was already available in the same application form as the

petitioner had clearly mentioned on the same page of the application form, which is on record as Annexure-2 of the writ petition, the name of his

village as Davela Post Kotra, District Banswara.

Learned counsel for the petitioner submits that the information, which was already on record, created sufficient right in favour of the petitioner to

have been considered as a TSP area candidate in the aforementioned recruitment process.

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

Kavita Choudhary Vs. The Registrar (Examination) & Anr. (D.B. Civil Special Appeal (Writ) No.1700/2017), decided on 01.11.2017. The said

judgment reads as under :“D.B. Civil Misc. Application No.41684/2017:

For the reasons stated in the application under Order 41 Rule 27 CPC, the same is allowed.

D.B. Civil Special Appeal(W) No.1700/2017:

Learned counsel for the respondents appears onadvance copy of the writ-appeal being served.

Heard learned counsel for the parties.

On 18.02.2017 an advertisement was issuedinviting applications 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 OtherBackward Class 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 foundthat she had secured 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 viewtaken by the 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 is divine.

Mistakes can be of two kinds. First kind would bewhere nobody 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 thatwhereas rectification of the first would cause no prejudice, rectification of the second would

cause a prejudice.

We find in the decisions dated 31.07.2013 inD.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 theappellant be treated 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 for02.11.2017 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 theimpugned order dated 27.10.2017 and allowing the writ petition filed by the appellant.â€​

Learned counsel for the respondents Shri Anil Bissa, AGC has strongly refuted the submission made on behalf of the petitioner on the ground that

once the petitioner was not cautious while filling the application form and has not given proper details, the petitioner shall rightly suffer disqualification.

Learned counsel for the respondent has relied upon the judgment passed by Jaipur Bench of this Court in Ajeet Singh Vs. The Rajasthan High

Court Jodhpur & Anr. (S.B. Civil Writ Petition No.15404/2017) decided on 27.10.2017. The relevant portion reads as under :-

“I have considered the rival submissions of learned counsel for both the parties.

In the opinion of the Court, the relief claimed by the petitioners cannot be granted as the advertisement which was issued had specifically made it

clear that candidates of Jat community from Bharatpur and Dholpur districts were to apply as ""General"" category candidate. The submission of the

form of the petitioners in General category candidates can only be considered as per their own online application form which was submitted. There is

specific condition in the advertisement that change of category will not be permissible in any circumstances and same has been found to be favourable

by three judgments of the Division Bench, as mentioned above.

As far as contention of the learned counsel for the petitioners is concerned that since examination is still going on and process has not yet completed,

suffice it to say that when at the time advertisement of the vacancy, the benefit of reservation was not available to the candidates of Bharatpur and

Dholpur Jat community candidates, the same cannot be extended them after issuance of notification dated 23.08.2017. The judgments cited by the

learned counsel for the petitioners are not applicable in the present facts of the case as in the case Uttar PradeshPublic Service Commission Vs.

Satya Narayan Sheohare & Ors. (supra) the facts were different. In that case, the notification for giving benefit to a particular caste was issued on

07.07.2000, the recruitment notification was issued on 04.03.2000 and the final examination was held in August, 2000. The Apex Court in that

background passed the order extending the benefit to such candidates. The underlying fact was that notification has come into existence prior to

holding examination or written test in that case. In the present case, the written examination was held on 23.07.2017 and merely declaration of result

subsequently will not make any change. The ongoing process of recruitment does not mean that the candidate will be able to get the benefit of such

notification at any time till the final result is declared.

The recruitment process begins the moment an advertisement is issued. All the candidates participate according to the terms and conditions which are

set out in the advertisement. The grant of benefit by the State Government while issuing notification on 23.08.2017 will not make it operative from the

back date. The Division Bench in the case of Ratan Lal Bagri (supra) has already held that benefit to the Jat category candidate of Bharatpur and

Dholpur is not extended after the judgment passed on 10.08.2015.

In the opinion of the Court the claim of the petitioners is not sustainable. The writ petitions are, accordingly, dismissed.â€​

Learned counsel for the respondent has also relied upon the judgment passed by Jaipur Bench of this Court in Vinay Mohan Kiradoo Vs. Rajasthan

Public Service Commission & Ors. (S.B. Civil Writ Petition No.16720/2016) decided on 10.02.2017 The relevant portion reads as under :-

“There may be a situation where the necessary certificates, as demanded, might not have been annexed in support of the category indicated in the

on-line application but where the candidate intends to change the category that too after the written examination being held and declaration of result, it

is certainly not permissible more so when in the instant case ample opportunity was afforded to the candidates by the Commission to edit their

application, if so desired, even at the stage before the written examination was scheduled to be held on 01.10.2016.

Indisputably, either of the petitioner does not fall in the cut- off marks notified in their respective category and that appears to be the sole reason in

harping upon that they being the Ministerial Employee working in the departments of Government holding the post in the cadre substantively may be

permitted to change their category after the final result came to be published by the Commission, which as already observed by this court, is not

permissible and even if it is considered to be a bonafide mistake, the petitioners are bound by such mistake and are liable to face the consequences

and the petitioners deserve to be considered in the category which they have indicated in their on-line application and change at this stage is not

permissible and may not be in conformity with the instructions notified by the Commission.

This court is of the view that when the instructions are in unequivocal terms and the candidate has to indicate the category in which he intends to

participate in the selection process and after ample opportunity being afforded if one failed to edit the on- line application, in absence of any statutory

provision to the contrary, this court is of the view that such request for change of category after declaration of result deserves to be summarily

rejected.

Consequently, this court finds no substance in the instant batch of writ petitions and accordingly the same stands dismissed. No costs.â€​

After hearing counsel for the parties and perusing the record of the case, this Court finds that the precedent law cited by counsel for the

respondent in the matter of Ajeet Singh (supra) is not applicable in the present set of facts. The factual matrix therein was the filling of wrong

category in the application form i.e. OBC Women category in place of TSP OBC Women category. Thus, the precedent law of Ajeet Singh (supra)

was categorically for category change, which is barred by the Division Bench judgment of this Hon’ble Court also. Secondly, the precedent law of

Vinay Mohan Kiradoo (supra) is also not applicable because the Hon’ble Court while deciding the issue has observed that “in the instant case

ample opportunity was afforded to the candidates by the Commission to edit their application, if so required, even at the stage before the written

examinationâ€. In this case, it is not refuted by counsel for the respondent that no opportunity whatsoever was provided by the respondents for any

kind of correction.

This Court further takes note of the fact that the information sought in the column ‘Tehsil of your tribal sub plan area’ where the petitioner

has mentioned NA (Not Applicable), which was already available with the respondents, as on the same page of the application form, the petitioner had

mentioned his village to be ‘Davela Post Kotra, District Banswara’, which is definitely a TSP area, and thus, the case is not of category

change. Any bonafide error on the part of the petitioner, if he is otherwise falling in the merit, shall not disentitle him for being given appointment. On

the other hand, the precedent law as relied by the petitioner is absolutely applicable in the present factual situation, as in the said judgment of the

Hon’ble Division Bench of this Court in the matter of Kavita Choudhary (Supra) it has been held that, to err is human, and further, Hon’ble

Division Bench of this Court has disposed of the appeal, allowing the writ petition while considering all the relevant case laws and holding that a

bonafide mistake ought to be permitted to be cured.

In light of the precedent law cited by counsel for the petitioner, the present writ petition is allowed with a direction to the respondent to consider

the petitioner in the TSP General Category in pursuance of the advertisement of 2015. The petitioners shall be given appointment on the post in

question, if they otherwise fall in merit and are eligible, while treating them to be TSP unreserved General category candidates. Such consideration

shall be made alongwith all the other selected candidates.â€​

In light of the aforequoted judgment, the writ petition is disposed of with a direction to the respondent to consider the petitioner in the TSP Category,

as reflected in his Special Bonafide Certificate No.8481 dated 29.09.2014 (Annex.6) of the writ petition in pursuance of the advertisement dated

29.10.2015. The petitioner shall be given appointment on the post of Prison Guard/Jail Warder (Jail Prahari), if he otherwise falls in merit and is

eligible, while treating him to be TSP category candidate. Such consideration shall be made alongwith all the other selected candidates.