HIGH COURT OF ALLAHABAD (D.B.) MAHIMA SRIVASTAVA V/S STATE OF U P AND OTHERS Date of Decision: 29 May 2014 Citation: 2014 LawSuit(All) 1624 ________________________________________ Honble Judges: Ashok Bhushan, Abhinava Upadhya Appeal Type: Civil Miscellaneous Review Application; Special Appeal Appeal No: 110889 of 2013; 734 of 2010 Subject: Civil Acts Referred: Code Of Civil Procedure, 1908 Or 47R 5, Or 47R 1 Final Decision: Application allowed Advocates: Pankaj Kumar Srivastava, Ravi Shankar Prasad ________________________________________ Judgement Text:- Abhinava Upadhya, J [1] This is a review application filed under Order 47 Rule 1 and Order 47 Rule 5 of the CPC read with Chapter-V Rule 12 of the Allahabad High Court Rules, 1952. The judgment sought to be reviewed has been passed in Special Appeal No. 734 of 2010 by Honble R.K.Agrawal, Abhinava Upadhya,JJ. Justice R.K.Agrawal is no longer a Judge of this Court and, therefore, the matter was placed before us as one of us (Justice Abhinava Upadhya) was also a Member of the earlier Division Bench. The review of the judgment dated 17.5.2010 has been sought on the ground that the said judgment was pronounced relying upon the information from the State authorities which were incorrect and the same came to the light only after judgment was pronounced. Hence the review application. [2] The brief facts are, that the applicant pursuant to an advertisement had applied for Special BTC Training Course of 2008. The applicant applied in prescribed proforma, filling up the form and annexing therewith all the certificates regarding educational qualification. When she did not get any call letter for appearing in the test, she filed Writ Petition No. 8710 of 2010. This Court disposed of the writ petition vide order dated 18.2.2010 directing the authorities to consider her claim. The claim of the applicant was rejected by order dated 31.3.2010 by the concerned authorities on the ground that the marks of B.Ed. mentioned in the form did not tally with the marks mentioned in the mark sheet of B.Ed. annexed with the form. [3] The applicant then filed another writ petition being Civil Misc. Writ Petition No. 23075 of 2010. Vide judgment dated 27.4.2010 the same was dismissed. It was held by the learned Single Judge that the orders of the authorities rejecting the claim of applicant is neither erroneous nor illegal, as the same has been passed considering the conditions laid down in the advertisement, which were not fulfilled by the applicant. One of the condition in the form was that true and correct marks obtained in each degree should be filled in the form and if the marks do not tally with the original document, the form would be rejected out rightly. Apparently the applicant had committed a mistake while filling up the form in writing lesser marks for her B.Ed. Degree, that is to say, she filled up 721 marks obtained in B.Ed. whereas the actual marks of the applicant were more, that is to say 726 marks. Obviously the mistake was apparent and the form was rejected. The applicant attributes this mistake to human error for which it was claimed that she could not be penalized on the principle to error is human. [4] After dismissal of the writ petition the applicant preferred this appeal which was dismissed vide order dated 17.5.2010. The Division Bench while hearing the appeal, made an enquiry from the counsel representing the State with regard to the total marks of the last selected candidate in order to see if the applicant, even after ignoring the human error and taking into account her actual marks of B.Ed., i.e., 726, would still qualify for the examination? Learned Standing Counsel appearing for the State informed the Court that the last selected candidate had obtained 236.37 index point marks. The Bench then went on to calculate the marks of the applicant as provided by the State authorities with regard to index point marks given to her in each degree and came to the conclusion that the applicant had obtained only 236.36 index point marks and found that the applicant even after ignoring the human error did not surpass the marks obtained by the last selected candidate and dismissed the appeal. [5] It is submitted that the rule prescribes the formula of rounding off the marks. Say if a candidate has obtained 45.166% marks in High School, after rounding off it will become 45.17%. The same has to be done for Intermediate, Graduation and B.Ed. etc. After totalling index point marks of each degree, the total marks would again be rounded off. It is emphasized that in respect of all other candidates this procedure of rounding off was adopted. While in the case of the applicant the same was not done. Therefore, her total index point marks were incorrectly disclosed to the appellate court as 236.36 marks whereas after correct calculation and rounding off the applicant would get 236.38 marks which would be more than the last selected candidate, who had obtained 237.37 marks and the applicant would be entitled for selection from which she has illegally been excluded. [6] In the review application it is stated that for the Special BTC Examination, 2008, the District Magistrate was the President/Chairman of the District Level Selection Committee and the decision taken by him would be final. It is further submitted that after decision in the special appeal the applicant made an application before the Chairman of the Committee, i.e., the District Magistrate of the District, who by order dated 11.8.2010 has reprimanded the Principal, DIET, Fatehpur for giving incorrect information to the Court and held that the applicant was entitled to 236.38 marks and thereby she obtained higher marks than the last qualified candidate and was entitled for selection. The said order has been filed as Annexure-2 to the supplementary affidavit filed to the review application. [7] No doubt the conditions as mentioned in the advertisement, condition no.11 clause 14 clearly provides that upon any discrepancy in the marks mentioned in the form and the marks mentioned in the mark sheet, the form would be rejected out rightly. But at the same time we cannot be oblivious to the factor of human error which is a normal phenomena and happens with everyone. All that is to be seen the bonafide of the applicant. If from the perusal of the record it appears that such error would place the applicant at a better position, then doubts can be had and motives can also be attributed. But if the error is such which is to the disadvantage of the applicant then doubting her motive would be unjustified. As in the present case, the mark sheet of B.Ed. revealed 726 marks whereas the applicant committed a mistake while filling the form wherein she mentioned B.Ed. marks as 721. Such a mistake has to be taken to be a human error or a bonafide mistake as the applicant would not derive any benefit by disclosing lesser marks than she actually scored. [8] During the hearing of the review application, we also cannot ignore the fact that the mistake was also committed by the authorities by not adopting the procedure of rounding off the marks thereby showing the applicant to have scored less marks than the last selected candidate. The mistake is apparent from the order dated 11.3.2010 of the District Magistrate, who is also the Chairman of the Selection Committee of the District, wherein it has been held that if proper rounding off procedure would have been adopted the applicant would have scored higher marks than the last selected candidate, i.e., 236.38. [9] Considering the aforesaid facts and circumstances, the review application is allowed and it is directed that the applicant having secured 236.38 marks and the last selected candidate having secured 236.37 marks, the applicant is entitled for selection in Special BTC Training Course, 2008. Accordingly, the order of the learned Single Judge dated 27.4.2010 is modified to the aforesaid extent and the writ petition is also allowed.
Posted on: Tue, 08 Jul 2014 07:20:08 +0000
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