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Judgment
ORDER
Per Hon’ble Mr. Manish Garg, Member (J) :
In the instant OA, the applicant sought the following reliefs:-
“8a. Set aside the Candidates Cancellation Notice dated 05.03.2019 and office order dated 05.03.2019.
b. Direct the respondents to appoint the applicant for the post of Nursing orderly-2015 (Haryana Region) immediately.
c. Direct the respondent to grant the notional seniority to the applicant as the candidates appointed similar post against the same recruitment.
d. Any other relief which this Hon’ble Tribunal may deem fit and proper in the interest of justice and against the respondents.”
Learned counsel would substantiate the relief sought in the present matter and would contend that though there is no dispute that the applicant had due to some clerical error could not submit complete details regarding his experience with the concerned hospital as per the RRs which mistake was minor in nature and on the sole basis of which the rejection order dated 05.03.2019 (Annexure A-1) has been passed. The same is reproduced hereunder :-
“……….As per online application the candidate has filled his name in the column of hospital. Hence the hospital name has not been verified during verification of documents. The candidate has submitted experience certificate issued from CHACHA NEHRU BAL CHIKITSALYA NEW DELHI on contract basis through Prime Services from December 2012 to January 2014 which is not valid.”
He further relies upon the fact that he has placed on record the application form which he filled online where an experience has been mentioned and no name of hospital has been mentioned. The respondents themselves issued a verification letter dated 01.03.2018 to Chacha Nehru Bal Chikitsalay which reads as under:-
“Sub : Request for Registration Number & Verification of Experience Certificate of the medical establishment. Sir/Madam,
1.As per the relevant Recruitment Rule only the experience gained at Government approved/registered Nursing Home/Hospital is to be treated as valid while assessing the fitness of an applicant for the post of Nursing Orderly. Hence it is requested that the experience certificate issued to Arun Goswami s/o, d/o Gyan Chand Giri by your contractor M/s. Prime Services for the period Dec 2012 to January 2014 may be supplemented by documentary evidence of your esteemed medical establishment being government approved/registered.
2.Please clearly mention the period for which the candidate mentioned above was employed by you, enclosing documentary evidence.”
An appropriate reply to the aforesaid communication dated 01.03.2018 was issued by Chacha Nehru Bal Chikitsalay dated 05.10.2018 which reads as under :-
“In reference to your above-referenced letter dt.01.03.2018 regarding verification of experience certificate issued to Mr. Arun Goswami S/o. Sh. Gyan Chand Giri by the contractor M/s. Prime Services for the period Dec’2012 to Jan’2014. It is submitted that experience certificate issued by the contractor to Mr. Arun Goswami w.e.f. Dec’2012 to Jan’2014 is for the period he has worked at Chacha Nehru Bal Chikitsalaya (CNBC), Geeta Colony, Delhi-110 031. Further, it is also submitted that this hospital is an autonomous institute under Govt. of NCT of Delhi.”
He also drew attention to the RRs and terms and conditions notified in the advertisement. The relevant part of which reads as under :-
“Matriculation or equivalent from recognized board. Elementary knowledge of 1st aid. One year experience in handling and dressing wounds in Govt. approved/registered Nursing Home/Hospital.”
He would highlight that as per the aforesaid RRs there is no dispute to the effect that even though he was working under a contractor, which was supposedly a government approved hospital and was working as Nursing Orderly in Chacha Nehru Children Hospital which admittedly as per the verification report of the hospital itself is an autonomous organization under the Government of NCT of Delhi and would contend that it would suffice the purpose of the requirements of the post.
He further relies upon the decision rendered by the Hon’ble High Court of Allahabad in Writ – A No. 17099 of 2021 in Akhilesh Kumar Vs. State of U.P. Thru. Prin. Secy. Basic Edu. And Ors.
“In Jyoti Yadav's case (supra), the Government Order dated 05.03.2021 has also been considered and the law in this regard has been categorically clarified as is mentioned in para nos.14 and 15 of the said decision quoted hereinabove. It has been categorically held that wherever the mistakes committed by the candidates purportedly gave additional marks or weightage greater than what they actually deserve, according to the communication dated 05.03.2021, their candidature would stand rejected. However, wherever mistakes committed by the candidates actually put them at the disadvantage as against their original entitlement or the variation could be one attributable to the University or issuing authority, an exception was made by said communication, the reason for these two categories of candidates differently cannot thus be called irrational. From the facts as discussed hereinabove, it is apparent that the petitioner herein falls in the category of those candidates who had actually put themselves at a disadvantaged position and therefore, even as per Jyoti Yadav's case (supra), the case of the petitioner is covered for grant of relief as observed therein.
The decision rendered in Rahul Kumar's case (supra) has not been considered by Division Bench judgment in RichaTripathi's case (supra) whereas the same has been considered by another Division Bench in Jubeda Bano's case (supra) as already discussed and quoted hereinabove.
He further relies upon the decision rendered in para 12 and 13 which are quoted below :-
“12.The Delhi High Court has also in similar circumstances, in W.P. © No.11642/2016, Ajay Kumar Mishra V/s. Union of India & Others decided on 23.12.2016 held as under :-
“15.As observed above, it is not the case of the respondents that the petitioner derived any advantage by entering the wrong date of birth in his online application. There is a difference between a mere inadvertent error and misrepresentation or suppression. There could be no intentional misrepresentation as the school certificate was submitted. The 5 enalization of cancellation of the candidature on the ground of a typographical error is arbitrary, unreasonable harsh and disproportionate to its gravity of the lapse.
13.As a result the petition is allowed. The respondent is directed to consider the candidature of petitioner for the post of Office Assistant (Multi purpose) and to issue appointment order in her favour in light of offer letter dated 03.03.2021.”
Countering the arguments put forth by the learned counsel for the applicant, counsel for the respondents vehemently opposes the grant of relief. He relied upon the averment made in the counter affidavit that there is a concealment of the facts by the applicant insofar as, he has not filled the application form properly. He adds that in a similar case in O.A No. 060/2018, titled as Sant Kumar vs. ESIC, the Hon’ble CAT of Chandigarh vide judgment dated 27.09.2018 held as under :-
“The question whether a candidate must have the prescribed educational and other qualifications on the particulars date specified in the Rule or the advertisement is no longer res integra. The Jurisdictional High Court in the case of Bhupinder Pal Singh versus State of Punjab &Ors. (2000(5) S.C.C Page 262) has held as under :-
“…that the cut-off date by reference to which the eligibility requirement must be satisfied by the candidate seeking a public employment is the date appointed by the relevant service rule and if there be no cutoff date appointed by the purpose in the advertisement calling for applications and that if there be no such date appointed then the eligibility criteria shall be applied by reference to the last date appointed by which the applications have to be received by the competent authority.
4.That in another case in O.A No. 060/01043/2017 title as Harish Kumar vs. ESIC, the Hon’ble Tribunal held that :-
“As to whether in such like cases, candidature of a candidate can be cancelled or he can be allowed appointment if otherwise eligible, has been sent at rest by Hon’ble Rajasthan High Court in the case of Managing Director, Ajmer Vidhyut Vitran Nigam Limited, Ajmer vs. Hitesh Kumar & Another (D.B. Civil Special Appeal) (Writ) No. 85/2016) decided on 1.8.2016 in the following words:-
If the respondent filled up his application form in haste when he was applying for a job under the Government and did not bother to ensure that he specified his correct category, we find it difficult to believe that it was a bonafide and inadvertent error. Regrettably for him, the negligence has proved costly. If a candidate lacks ability to fill up the application form correctly, his capacities and abilities for the job come under severe cloud in an otherwise competitive environment. 12. the Hon’ble High Court has clearly held that if a candidate lacks ability to fill up the application form correctly, his capacities and abilities for the job come under severe cloud in an otherwise competitive environment. The observations made therein would directly apply to the issue raised in the instant case as indeed applicant has been negligent in filling up the application form on line and if something has gone wrong, then he himself has to blame for it and no one else. It is well settled that when the statute prescribes something to be done in a particular manner, it shall be done only in that manner and not otherwise.
13.in the wake of aforesaid discussion, this O.A is found to be devoid of any merit and is dismissed, leaving the parties to bear their own costs.”
He refers and relies upon the conditions which reads as under :-
“3.ESI Corporation will NOT undertake detailed scrutiny of online applications for eligibility and other aspects at the time of written examination and, therefore, the candidature is accepted only provisionally. Before applying candidates are advised to go through the requirements of educational qualification, age etc. and satisfy themselves that they are eligible for the post. The candidates finding place in the Select/Reserve Panel will be required to submit print out of online application along with self-attested documents in support of their eligibility etc. at a later stage when called for. Detailed scrutiny and document verification of applications with regard to eligibility criteria in respect of such candidates will be undertaken if any claim made by the candidate in the application is not found substantiated during verification, the candidature will be cancelled the decision of ESIC shall be final.
(i)Misbehaving in any other manner in the examination hall with the Supervisor, Invigilator or ESIC’s representatives.
J.ECI’S DECISION FINAL
The decision of the ESIC in all matters relating to eligibility, acceptance or rejection of the applications, penalty for false information, mode of selection, conduct of examination(s) and interviews, allotment of examination centers, selection and posting of selected candidates will be final and binding on the candidates and no enquiry/correspondence will be entertained in this regard.”
In rejoinder, the arguments put forth by the learned counsel for the applicant is that there was no column in the application form itself that he had to give the name of the hospital. He further contends that the rejection of the candidature of the applicant is without any basis or justification inasmuch as, the applicant was provisionally selected twice and only after verification which was found to be proper, there is no fault on the part of the applicant and the rejection order by itself is liable to be set aside. However, he again reiterated that he does not dispute that such an error on the part of the applicant in not filling the name of the hospital, the applicant could not be placed in a disadvantageous position.
Reserved for Orders.
Having heard learned counsel for both the parties in detail. The question of law in the present matter to be adjudicated upon is that can a minor mistake in filling the application form online for any post disqualifies a candidate.
In the present case, the factual aspects have already been narrated hereinabove and are not being reproduced for the sake of brevity. We would like to draw a reference to a recent decision by the Hon’ble Apex Court in Vashist Narayan Kumar vs. State of Bihar & Ors., CA No. 1/2024 arising out of SLP No. 12230/2023 decided on 02.01.2024, wherein after dealing with this aspect of the matter, and various case laws, the Hon’ble Apex Court observed as under :-
”19. In this case, the appellant has participated in the selection process and cleared all the stages successfully. The error in the application is trivial which did not play any part in the selection process. The State was not justified in making a mountain out of this molehill. Perhaps the rarefied atmosphere of the cybercafe, got the better of the appellant. He omitted to notice the error and even failed to avail the corrective mechanism offered. In the instant case, we cannot turn a Nelson’s eye to the ground realities that existed. In the order dated 22.11.2021 in C.A. No. 6983 of 2021 [Prince Jaibir Singh vs. Union of India & Ors.], this Court rightly observed that though technology is a great enabler, there is at the same time, a digital divide.
20.In one of the cases cited as a precedent in the counter affidavit, before the High Court, Pankaj Paswan vs. State of Bihar Anr., 2015 SCC On Line Patna 8739, the State had taken a defence that many candidates applied in more than one place and hence there could be deliberate tweaking in the date of birth to take advantage of the selection process in more than one district or region. It is very important to notice that there is no such plea taken in the present case. If any such device or trick had been adopted, the State would have easily detected the same and placed the same before the Court. The fact that the same has not been done shows that there was no trick or device resorted to by the appellant. It is a trivial error which appears to be a genuine and bona fide mistake. It will be unjust to penalise the appellant for the same.
21.Learned counsel for the State, in the written submissions, stated that the instructions clearly stipulated that if two or more candidates obtain the same marks in the Physical Eligibility Test, their relative rank in the final merit list could be determined on the basis of their date of birth. The implication in the submission is that the date of birth is a significant aspect. On that basis, he submits that the cancellation ought to be upheld. We do not find merit in the submission. The original date of birth, as available is 18.12.1997, in the educational certificates. There is no dispute that the appellant’s date of birth was, in fact, 18.12.1997. In view of that, we do not see the said clause in the instructions as an impediment for the selection of the appellant.
22.Learned counsel for the State has also, in the written submissions, cited the judgment of this Court in Yogesh Kumar and Others vs. Govt. of NCT, Delhi and Others, (2003) 3 SCC 548. The said judgment is clearly distinguishable. There the issue was about allowing entry of ineligible persons into the selection. While the eligibility prescribed was Teacher’s Training Certificate from a recognized institute or intermediate or equivalent from a recognized Board/University with an elective subject in the required language at the matric level, candidates with B.Ed. degree sought appointment as Assistant Teacher. Negating their claim, this Court held that the B.Ed. qualification cannot be treated as a qualification higher than the Teacher’s Training Certificate, because the nature of the training imparted for grant of certificate and for grant of degree was totally different. In that context, this Court held that deviating from the rules and allowing entry to ineligible persons would deprive many others who could have competed for the post. Yogesh Kumar (supra) has no application to the facts of the present case. Equally distinguishable are the judgments of the Delhi High Court in Rohit Kumar and Another vs. Union of India and Others, 2022 SCC OnLine Del 1219 and Pradeep Kumar vs. Union of India and Others, 2022 SCC OnLine Del 239.
23.In the case of Rohit Kumar (supra), the undisputed facts, as is clear from para 10 of the judgment, was that the candidate was declared unsuccessful on two counts, namely, that the OBC certificate uploaded by the candidate was not as per the format as mentioned in the advertisement and additionally on the ground that the date of issuance of the certificate was wrongly mentioned in the online application.
24.In Pradeep Kumar (supra), the identity proof (Aadhaar Card) was not uploaded and instead the self photograph of the candidate has been uploaded. We find that the said two judgments are distinguishable on facts for the reasons set out above.”
In the present case also since the applicant was provisionally selected and verification was also done on the part of the respondents, from the Chacha Nehru Bal Chikitsalay hospital as already highlighted above, there was no occasion for the respondents to reject the candidature by way of the said speaking order.
CONCLUSION :
In view of the above, the present OA is allowed. The respondents are directed to treat the applicant as selected, if otherwise he is found eligible in the peculiar facts and circumstances of the case. The applicant shall be entitled to the consequential benefits on notional basis and actual benefits from the date of joining. Appropriate orders for grant of offer of appointment be passed within a period of two months from the date of receipt of a certified copy of this order.
This disposes of the present OA. Pending MA(s) if any, also stands disposed of accordingly.
There shall be no order as to costs.