Satyveer vs Assistant Personnel Officer (Recruitment), NWR

Ajay Rastogi, J.—Instant petition is directed against order of the ld. Central Admininstrative Tribunal dt. 12.12.2014.

Brief facts of the case which emerge from the record are that the petitioner is a member of OBC Category and the North-Western Railway issued an employment notice No. 2/2010 dt. 16.12.2010 for recruitment against Group ''D'' post in various categories. The selection process was initiated for approximately 1800 vacancies of Group ''D'' category.

Pursuance to the employment notice, the petitioner applied for the Group ''D'' post and appeared in the written examination in which he was declared successful and thereafter qualified the Physical Efficiency Test (PET) and indisputably, his name find place in the select list for being appointed in Group ''D'' posts and thereafter he was called for document verification by issuing attendance slip (Ann. A/8) dt. 23.01.2013 and all of his documents were verified and he was awaiting offer of appointment but remained shocked when he received the impugned communication dt. 25.07.2013 informing that his application form has been rejected on account of wrong mentioning of his date of birth as 20.07.1984 instead of 22.07.1984, indicated in his Secondary School Board Certificate which he annexed along with his application form and this human error was considered to be an irregularity under Cl. 8.11(xvi) of the conditions of Advertisement declaring his application form to be invalid vide communication dt. 25.07.2013, which was the subject matter of challenge by filing of original application before the ld. Tribunal and the ld. Tribunal dismissed the Original Application on the premise that incorrect date of birth which was mentioned in his application form, even if supported with the Secondary School Board Certificate annexed along with his application form but being an error in the application form which indisputably has been committed by him, it was considered to be a deemed irregularity invoking Cl. 8.11(xvi) of the conditions of Advertisement and accordingly, no error has been committed by the respondent while rejecting his application form declaring it to be invalid vide order dt. 25.07.2013 under order impugned dt. 12.12.2014 which is subject matter of challenge in the instant writ petition.

Counsel for the petitioner submits that Cl. 8.11(xvi) of the condition of advertisement has been wrongly invoked and is not applicable to the case of the present petitioner and further submits that he is a member of OBC and minimum and maximum age limit prescribed for appointment, as per the advertisement, was 18 and 33 years and as per his date of birth, it comes to 27 years at the time of submission of the application form and as such behind mentioning of two days elder age, there could not be any intention of the petitioner to get undue advantage and is a mere human error, as such, the selection of the petitioner cannot be cancelled by declaring his application form to be invalid invoking Cl. 8.11(xvi) of the conditions of Advertisement and such human error cannot be considered and termed as deemed irregularity. Hence, rejection of application form of the petitioner, on this count, is wholly arbitrary and not legally sustainable in law and the petitioner could not be deprived of seeking appointment after being placed in the order of merit for the post of Group ''D'' Category which is a cadre of Class-IV.

Counsel further submits that he had enclosed/annexed Secondary School Board Certificate for verification of his date of birth and mentioning of two days elder age, in the given facts and circumstances, cannot be considered as an intention to get any undue advantage and it is a human error and not a mistake or irregularity to invoke Cl. 8.11(xvi) of the Advertisement and declare his application form to be invalid and canceling his appointment vide order dt. 25.07.2013, in the facts and circumstances is not sustainable.

Counsel for respondent, on the other hand, submits that it is incumbent upon the petitioner to have carefully read the instructions prior to filling up the application form and it was upon the applicant-petitioner to fill his correct date of birth in Column No. 9 and although in terms of para No. 3.02 of the advertisement, the petitioner had annexed the Secondary School Board Certificate for his date of birth but that documentary evidence may not be sufficient to hold that the error which indeed has been committed by the petitioner in filling the application form, and mentioning his date of birth as 20.07.1984 instead of 22.07.1984, may be a human error but still a deemed irregularity particularly when a declaration was made by the petitioner that in case of any wrong or incorrect information, his candidature may be rejected and in terms thereof there appears no error which the authority has committed in rejecting his application form and declare it to be invalid vide order dt. 25.07.2013 and the ld. Tribunal has not committed any error in rejecting the Original Application filed by the petitioner under order impugned dt. 12.12.2014 which does not call for any interference by this court.

Counsel for the respondent further submits that irregularity of any kind, if committed by the applicant in his application form, if not covered u/Cl. 8.11(i)-(xv) that in itself is sufficient to declare the application form to be invalid invoking Cl. 8.11(xvi) of the conditions of advertisement and in support of his submission, placed reliance on the judgments of the Apex Court in Bedanga Talukdar Vs. Saifudaullah Khan and Others, (2011) 11 SCALE 293 ; and UOI and Anr. Vs. Sarwan Ram and Anr. [Civil Appeal No. 9388/2014] decided on 08.10.2014.

We have heard counsel for the parties and with their assistance examined the material available on record.

The questions which arise for consideration is as to whether there has at all been a violation of Cl. 8.11(xvi) of the Instructions of the Advertisement; and whether the kind of human error being committed would be considered a deemed irregularity declaring the application form to be invalid.

The indisputed facts which can be noticed are that the petitioner is a member of OBC Category and he applied for various categories in Group ''D'' post, which is a cadre of Class-IV and participated in the selection process, pursuant to the employment notice No. 2/2010 issued by the Railway Recruitment Cell, North-Western Railway, Jaipur and qualified the written examination as well as Physical Efficiency Test and finally placed in the select list and candidates lower in the order of merit in OBC Category have been offered appointment and his application form has been rejected treating it to be invalid invoking Cl. 8.11(xvi) of the advertisement. It will be appropriate to quote Cl. 8.11 (Invalid Applications) of the conditions of advertisement, relevant for the present purpose, ad infra:-

"8.11 INVALID APPLICATIONS:

The applications having any of the following deficiencies, discrepancies or irregularities will be summarily rejected:-

(i) Applications not submitted in prescribed format as given in this employment notice.

(ii) Incomplete or illegible applications, or applications not filled with black ink/black ball point pen, or applications with overwriting, cutting or erasing marks.

(iii) Unsigned/undated applications/applications without clear and un-smudged thumb impressions and/or without Marks of Identification.

(iv) Without photograph or affixing/attaching Xerox copy of Photograph.

(v) Without Bank Draft/Postal Orders/Pay Orders of requisite value and validity.

(vi) Applications not filled in English or Hindi or not filled by candidate in his own hand writing.

(vii) Applications without para written in candidate''s own handwriting.

(viii) Without proper certificates, in respect of SC/ST/OBC and/or Physically Handicapped.

(ix) Under aged/Over aged candidates.

(x) Not having the requisite Educational Qualification at the time of submitting application.

(xi) Applications received after 17.00 hrs. on closing date by any means/modes.

(xii) Photo copies of the certificates not attested by Gazetted Officer.

(xiii) More than one application in one Name or sent in one envelope.

(xiv) Issue the notification date and after expire date the notification date received application form not applicable.

(xv) Postal Orders/Bank drafts issued before the date of issue of Employment Notice (i.e. 16.12.2010) or with less than six months validity.

(xvi) Any other deemed irregularity."

At the outset, we may notice that all the possible deficiencies, discrepancies or irregularities have been expressly indicated u/Cl. 8.11 of the Advertisement and as a residuary clause, if a kind of deficiency, discrepancy or irregularity, if committed by the candidate/applicant not covered under sub-cl. (i) to (xv) of Cl. 8.11 of the Advertisement or any left out deficiency, discrepancy or irregularity, according to the respondent, could be considered as a deemed irregularity and such applications may be treated to be invalid applications and despite extensively illustrative irregularities being pointed out, indisputably, the case of the present petitioner does not fall under either of the discrepancy/irregularity and his application has been rejected treating it to be a deemed irregularity invoking Cl. 8.11(xvi) of the Advertisement, that in the application form, the date of birth which the petitioner-applicant had mentioned was 20.07.1984 instead of 22.07.1984.

It may be noticed at this stage that although the petitioner has mentioned 20.07.1984 instead of 22.07.1984 but there is a requirement in the application form under the advertisement that the candidate in support of his date of birth, has to enclose his secondary school board certificate and admittedly, the petitioner annexed his Secondary School Board Certificate wherein his date of birth recorded is 22.07.1984. It is also not the case of the respondent that by mentioning incorrect date of birth as 20.07.1984 instead of 22.07.1984, the petitioner has any intention to take undue advantage and as already referred, in terms of the advertisement, the minimum and maximum age prescribed for appointment, as per the advertisement, was 18 and 33 years and as per his date of birth, the age of the petitioner comes to 27 years at the time of submission of his application form and indisputably, behind mentioning of two days elder age, there could not be any intention of the petitioner to get any undue advantage and it is indisputably a case of human error which was committed by him and human error, in no manner, could be avoided but in a case where condition relating to eligibility if has not been complied with, which is mandatory in terms, certainly no indulgence can be claimed but if it is a case of human error like in the instant case being committed by the candidate that could not be considered as a deemed irregularity invoking Cl. 8.11(xvi) declaring application form to be invalid under order impugned dt. 25.07.2013.

A bare look to Cl. 8.11 of the Advertisement envisages and refers to invalid applications apart from the fact that it is extensively illustrative and exhaustive we find that kind of deficiencies, discrepancies or irregularities, which are covered under sub-clause (i) to (xv) of Cl. 8.11, in one way or the other, relates to the basic eligibility of the applicant for his participation in the selection process. If the application form is incomplete or the relevant documents are not being annexed, if he is a member of reserved category or differently abled or his application form has not been received on or before the closing date or the education testimonials are not enclosed by the applicant at the time of submission of application form or the requisite bank drafts are not enclosed, all such conditions in one way or the other, relates to the eligibility of applicant but despite such illustrative conditions to be laid down, if the application form carrying any of the discrepancies, deficiencies or irregularities, it is treated to be invalid in terms of Cl. 8.11(i) to (xv) but at the same time discrepancies, deficiencies or irregularities not covered u/Cl. 8.11(i) to (xv) of advertisement cannot be considered as deemed irregularities u/Cl. 8.11(xvi) and it becomes very vague as to what kind of discrepancy, deficiency or irregularity could be considered to be deemed irregularity.

It is a debatable issue but in the facts and circumstances which has come up for our consideration, the human error which the petitioner has committed in filling the application form is in respect of his date of birth and as he mentioned his date of birth as 20.07.1984 instead of 22.07.1984 duly supported with the secondary school board certificate annexed with the application form and that refers his date of birth as 22.07.1984 and as already taken note of it is not the case of the respondent that by mentioning incorrect date of birth in the application form he had any intention to take any undue advantage and it was indeed a human error, as already observed, and no one is perfect and human error in itself cannot be considered to be a deemed irregularity invoking Cl. 8.11(xvi) of the Advertisement and cannot be considered to be a basis for rejection of the application form when it relates to seeking public employment and the candidate could not be deprived of his legitimate right to seek appointment after he has gone through the cumbersome procedure and found suitable for appointment in the Group ''D'' Cadre.

The judgments relied upon by the respondent in Bedanga Talukdar (supra) and in particular paras 28 and 29 thereof, may not be of any assistance to the respondent as in the above referred case the candidate failed to submit the mandatory document to substantiate his candidature for the seat reserved for Locomotor disability on or before the last date for submission of application, even failed to submit these mandatory documents at the time when he appeared in the preliminary examination and appeared in the examination, as a general candidate and another person with Locomotor disability who had also applied for the said examination was selected against the reserved vacancy. The appellant as well as successful candidate had participated in the Preliminary Examination and the successful candidate was permitted to appear in the Main Examination and both were called for interview. The successful candidate before the Supreme Court submitted that the certificate with respect to Locomotor disability issued by the District Medical Board, Dhubri produced at the time of interview cannot be taken on record. The name of unsuccessful candidate, however, did not appear in the select list and he later on came to know that the marks secured by him were higher than the marks obtained by the successful candidate. It transpired that the unsuccessful candidate had not been declared successful on the ground that the above referred mandatory documents were not submitted by him in time and his candidature was rejected for non-fulfillment of essential condition. In fact, the ID Card had not been submitted by the unsuccessful candidate even till after interview and by the time he submitted the ID Card the select list had already been published. It was contended on behalf of the Commission that there can be no variation in the conditions of eligibility as laid down in the advertisement, unless a specific stipulation is made about any particular condition being relaxable at the discretion of the concerned authority. It was on these facts that the above quoted observations were made by the Supreme Court.

Reliance placed by counsel for respondent on the case of UOI and Anr. Vs. Sarwan Ram and Anr. [Civil Appeal No. 9388/2014] decided on 08.10.2014 may not be of any assistance to them for the reason that it was a case where the applicant applied for Group-D post in Ex-Serviceman Quota and the applicant who intends to participate in the selection process in Ex-Serviceman Quota, it was mandated that he has to paste photograph in military uniform along with application form, which was one of the mandatory condition to be complied with by the applicant. Indisputably, the photograph pasted by him was not in the Military Uniform and the application form filled by him was considered to be defective and came to be rejected by the recruiting agency and the justification offered by the respondent-recruiting agency was that as per the Defence Service Regulation, officers holding honorary commissions and released officers who held other types of commissions may on special occasion wear the military uniform. But released/discharged JCOs, WOs or NCs(E) may be allowed to wear uniform on specifications only under orders issued by the Army Headquarters from time to time and that all regular officers who have retired from the service and officers who have been permitted to retain their rank on retirement from RRO Commissioner may wear uniform on special occasions like attending ceremonies and entertainments of military nature and on other occasions when the wearing of uniform would appear appropriate. It came to the notice of the authorities that bogus persons by enclosing fake certificates started getting recruited and to rule out and eliminate the possibility of any bogus person getting such recruitment, condition No. 8.7(i) was introduced to paste photograph in military uniform on the application form and obviously the object behind it was to rule out to impersonate the person.

Before us, is not a case of the candidate failing to submit documents which were essential for verifying his eligibility and in support of his date of birth, secondary school board certificate was annexed by him along with his application form and it was not the case of the respondent that a human error being committed in indicating his date of birth as 20.07.1984 instead of 22.07.1984, he had any intention to take undue advantage and human error committed by the petitioner in indicating his date of birth as 20.07.1984, in no manner be termed as deemed irregularity of a kind which could declare his application form invalid invoking Cl. 8.11(xvi) of the advertisement and in our considered view, rejection of his application form under order impugned dt. 25.07.2013 is not sustainable in law.

We had an occasion to consider the question and scope of the Cl. 8.11(xvi) of the advertisement a deemed irregularity in D.B. Civil Writ Petition No. 11263/2014 [Sanjeev Kumar Saini Vs. Union of India and Another] decided on 15.05.2015 where the candidate while filling the OMR Sheet has forgotten to put his signatures, however, there was his thumb impression which was duly verified by two Invigilators and after examining Cl. 8.11(xvi) of the conditions of advertisement, we were of the view that every error of a kind being committed could not be considered to be a deemed irregularity for rejection of the application

The ld. Tribunal, in the instant case has committed error in not appreciating as to whether a kind of human error, which was committed by the petitioner, in indicating his date of birth, despite all other formalities being complied with, in any manner does relate to eligibility of the petitioner for his participation in the selection process and dismissed the Original Application only on the premise that there is an admission of the petitioner about an error committed by him in mentioning his date of birth in the application form as 20.07.1984 instead of 22.07.1984 and treating it to be a deemed irregularity u/Cl. 8.11(xvi) of the conditions of advertisement, the ld. Tribunal rejected the Original Application under order impugned.

As already discussed in detail, every human error of a kind, as in the instant case, which has been examined by this court, cannot be considered to be a deemed irregularity falling u/Cl. 8.11(xvi) in isolation.

In our considered view, the ld. Tribunal has committed a manifest error in rejecting the Original Application under order impugned dt. 12.12.2014 which is not sustainable in the eye of law.

Consequently, the writ petition deserves to succeed and is hereby allowed. The order of the ld. Tribunal dt. 12.12.2014 and so also the order passed by the respondent dt. 25.07.2013 rejecting his application as invalid are hereby quashed and set aside and the respondent is directed to consider the case of the petitioner for appointment, as per his placement in the select list of Group ''D'' Cadre, pursuant to employment notice No. 2/2010 dt. 16.12.2010 and necessary orders shall be passed by the respondent within 30 days.

No cast.