Kumari Nisha Yadav vs State of U.P. and Others

We have heard learned Counsel for the Appellant. Learned Standing Counsel appears for the Respondents.

With the consent of the parties this special appeal is finally decided at this stage.

The Petitioner- Appellant is aggrieved by the order of learned Single Judge dated 31.1.2011 in Writ Petition No. 5601 of 2011 by which he has dismissed the writ petition against the order rejecting Petitioner''s application for selection to Special BTC Training Course, 2008 on the ground that in the counselling on 2.8.2010 her application form was found to be affixed with photograph, which were not duly attested. The prayer in the writ petition to permit her to correct it, and to be sent her for training was not accepted. Learned Single Judge distinguished the judgment in Kavita Rani v. State of U.P. and Ors. 2008 (4) ESC 2762 in which a wrong mention of percentage of marks of B. Ed. was found to be indeliberate clerical error and form was accepted. Learned Single Judge has found that the facts of the case in Kavita Rani were different and that there was a certificate of proof of marks obtained by the candidate.

In the present case we find from the pleadings that the photographs of the Petitioner were affixed on the form. They were not duly attested. The Petitioner had appeared before the authorities conducting the counselling. There could be no difficulty in finding out that the photograph affixed were the same, as of the girl, appearing before them. The want of attestation of photograph in the form was an irregularity. It could not be treated to be a fatal error. There could be no cause for non-attestation of the photograph except for human error. When the Petitioner was present before the authorities conducting the counselling, her photograph could be verified from her appearance and she could have been permitted to correct the error by getting it attested. In her application dated 7.10.2010, the Petitioner pleaded that in counselling on 2.8.2010 she was required to remove defects in her application. She was called to appear again on 30.9.2010, vide letter dated 14.9.2010 but was not allowed to remove the formal defect.

To err is human. Unless the form filled up by the Petitioner was so incurably defective that it could not have been accepted, the authorities conducting the counselling should not have rejected her candidature.

The reasons given by learned Judge namely that: "Admittedly, a mandatory condition has been imposed in the advertisement that any application, if found incomplete in any respect, would be rejected, and unless there are rules to the contrary, no such relief can be granted", do not stand the test of objectivity and rationality. The attestation of photograph could not be held to be a mandatory condition of providing the information in the application form. The defect in no way could be treated as an incomplete, incorrect or false declaration. At best it was a formal defect, which was curable and for which the Petitioner was ready and had appeared on the next date, when she was called to appear.

Even if there are no statutory rules or any practice to the effect, the approach to such an issue has to human. A candidate should not be turned away in the counselling for a minor error in her application form, which did not have any bearing on her eligibility and the merit, on which she was selected.

The special appeal is allowed. The judgment dated 31.1.2011 is set aside. The writ petition is allowed with directions that the Petitioner will be permitted to correct the error in her application form. She will be given the application form to get the photographs attested and will be sent for training. The order will be complied with within a month.