Vishwas Garasiya @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 respectfully prayed that this Hon’ble Court may very graciously be pleased to accept and allow this writ petition and

further be pleased to issue an appropriate writ, order or direction in the nature thereof thereby;

(i) the action of the respondents is not considering the candidature of the petitioner on the post of Teacher Grade III Level II English in pursuance of

advertisement dated 11.09.2017 (Anx.4) may kindly be declared bad in the eye of law, unjust arbitrary, discriminative and so also violative of Article

14 and 16 of the Constitution of India and the same be quashed and set aside ; and/or

( ii) The respondents may also kindly be directed to consider the candidature of the petitioner while taking into account the total percentage is 44.89%

and thereafter, if the candidature of the petitioner is found as per merit, the petitioner may be appointed on the post of Teacher Grade III Level II

English.

(iii) The respondents may also kindly be directed to consider the candidature of the petitioner on the post of Teacher Grade III (Level II) English and

accordingly provide him appointment with all consequential benefits.â€​

The petitioner is a male candidate belonging to TSP area of Banswara district and participated in the recruitment process for the post of Teacher

Grade-III Level-II English in pursuance to the recruitment of 2016. The petitioner obtained 44.89% which was more than cut off marks for Level II

(English) i.e. 44.60%. The respondents have not considered the case of the petitioner on count of the fact that the petitioner who was having 44.89%

was considered having 44.08% marks. The wrong mentioning of the subjects has resulted into such anomaly of miscalculation.

3.1 Learned counsel for the petitioner states that if he is permitted to rectify the mistake and if the respondents are directed to consider the

candidature of the marks while considering the total 44.89% marks, then the petitioner would be qualified.

3.2 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€​

3.3 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€​

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

In light of the above, the present writ petition is disposed of and the respondents are directed to consider the case of the petitioner afresh for the

post of Teacher Grade-III Level II (English) for the recruitment of 2016 by allowing him to make necessary correction of marks. The consideration

shall be made by the respondents within a period of 30 days from today, which shall be subject to availability of vacancy.