The Allahabad High Court has ordered the appointment of a woman as Civil Judge who was denied the post in UPPSC (J) Examination 2018, due to calculation error in her marks.
The Division Bench of Justice Saumitra Dayal Singh and Justice Donadi Ramesh passed this order while hearing a petition filed by Janhvi.
The petition has been filed for the following relief:
“(a) Issue a writ, order or direction in the nature of Mandamus directing the respondent Nos 2 & 3/Authorities to produce the copy of English Language for the post of Civil Judge (Junior Division), in respect to the UPPCS (J) 2018/Uttar Pradesh Judicial Service Civil Judge (Junior Division) Examination 2018 conducted by the Uttar Pradesh Public Service Commission, Prayagraj.
(b) Issue a writ, order or direction in the nature of Mandamus to look into the matter of the petitioner and do needful immediately, so far as re-calculation of two marks in English Language paper although two marks was awarded to her and declare the result of the petitioner for the post of Civil Judge (Junior Division) after re-calculation of her marks in respect to the UPPCS (J) 2018/Uttar Pradesh Judicial Service Civil Judge (Junior Division) Examination 2018 conducted by the Uttar Pradesh Public Service Commission, Prayagraj.”
The Court noted that,
In view of the candid admission made by UPPSC, it may be recorded that the petitioner was entitled to be selected and recommended for appointment at the time of declaration of the final result itself, on the strength of cut-off marks obtained by her.
Considering the fact, she is the eldest of the first three candidates recommended under the Reserved Category – (Scheduled Caste) belonging to female category, against equal marks achieved by her, the petitioner’s name should have been recommended first under that category as may have allowed her natural seniority in the cadre of Civil Judge (Junior Division). That relief and status was denied to the petitioner for no fault. Therefore, she is found entitled to relief.
The Court is only required to consider what relief may be granted to the petitioner at this belated stage. The UPPSC admits it’s mistake, yet senior counsel for the Commission submit, the UPPSC is helpless at this stage. Not only recommendations were made pursuant to completion of the selection process for the UPPCS (J) 2018, two more examinations have been conducted in 2020 and 2022. In any case, the UPPSC acts on the requisition made by the State Government. That requisition having lapsed, the Commission does not have the authority and it is not in a position to revisit the final result as may provide for any recommendation to be made in favour of the petitioner, today.
The Additional Chief Standing Counsel stated that the State has not filed a counter affidavit in the writ petition. Yet, in absence of any recommendation made by the Commission, it cannot act to offer any appointment to the petitioner, on its own.
Ashish Mishra, counsel for the High Court has first referred to Rule 21(2) of Uttar Pradesh Judicial Service Rules, 2001.
Other counsel for the respondents have generally opposed the prayer for grant of relief of appointment to the petitioner for reason of delay.
With respect to delay, the Court noted the undisputed facts of the case. The notification advertising 610 vacancies in UPPCS (J) 2018 was issued on 11.09.2018. After completion of the preliminary examination, a written examination was conducted by the Commission between 30.01.2019 and 01.02.2019. Thereafter, the Interview Test (of the petitioner) was held on 27.06.2019. The final result was declared by the Commission on 20.07.2019. Consequently, recommendation was first made by the Commission on 25.07.2019. Thereafter, on 07.08.2020, the petitioner submitted an application under the Right to Information Act, 2005, to inspect her answer books. That inspection was allowed to her on 10.11.2020. Then, she first discovered that she had been awarded two marks less than earned by her in the paper English. Within 90 days therefrom, she filed the petition. As noted above, despite the main ground of challenge noted in the order dated 15.3.2021, the petition has remained pending for three and half years, for procedural reasons.
The Court observed that the petitioner is not at fault, at all. She, a citizen, was always protected under Articles 14 and 16 of the Constitution of India. She was fully entitled to believe that a completely fair, equal and transparent opportunity of equal participation would be maintained by the state authorities. That right of a citizen is supreme. Therefore, the petitioner had no reason to suspect and she had no cause of action – to approach the Court at the stage when final result was declared by the Commission, on 20.07.2019.
At the same time, the High Court notifies the State Government, from time to time, the vacancies in the cadre of UPPCS (J). The State Government is the appointing authority. Under the constitutional scheme, it has chosen the UPPSC as its hand to conduct the examination to test the merit of desirable and eligible candidates. The burden to conduct the selection process to ensure due compliance of Articles 14 and 16 of the Constitution of India, therefore rests solely with the State Government and UPPSC. Insofar as both are States, within the meaning of Article 12 of the Constitution of India, the citizens are impliedly (and for good reason), assured that they would be treated fairly and reasonably, in a transparent manner. There is no presumption or room existing with the citizenry to believe or suspect that they would be arbitrarily or unfairly dealt with in the conduct of such public examinations. Therefore, if the petitioner did not immediately act upon declaration of the final result on 20.07.2019, it cannot be said that petitioner did not act with due diligence or the petitioner acted with any amount of inherent negligence.
The Court said that it is equally true that any candidate unsuccessful at any public examination requires time to deal with the sense of the immediate failure that may visit them. Also, in their capacity as a candidate and a young citizen, it is not expected that a person such as the petitioner would be able to collect all relevant information and to rush to Courts to seek legal remedies, rationalize it immediately upon such injury being caused.
The Court further said that,
In the backdrop of the presumption that exists with the favour of all actions performed by the State Government and UPPSC and the inexperience in life that must be attributed to the petitioner, a margin of time must be given to her. She would have taken time to seek due consultation and guidance with family, friends and lawyers to discover the path to her remedies. At that stage, no forum for counselling or guidance or redressal of grievances was offered by the Commission, as may have allowed the petitioner to act earlier.
Considered from that perspective, the petitioner did not act with delay or laches in making her application on 07.08.2020, under the Right to Information Act, 2005. Inspection was first allowed on 10.11.2020. Then, the petitioner first realized that she had been wrongly awarded 473 marks (total) against 475 marks earned by her. Within ninety days therefrom, the petitioner approached this Court. Therefore, no element of laches may be attributed in the conduct offered by the petitioner.
“Therefore, we find no legal impediment in the path of equitable relief to which the petitioner is found deserving. Unless equity is confronted with any explicit legal provision, the exercise of extraordinary jurisdiction of the Court under Article 226 of the Constitution of India may not be fettered for reasons of procedural delays etc. Those may never be attributed to the petitioner.
As observed by the Supreme Court in Smita Shrivastava (supra), the petitioner is found entitled to restitutive relief. Here, we are mindful of the fact that the maximum age for appointment for UPPCS (J) is 35 years. We are also mindful of the fact that the selection to UPPCS (J) 2018 was completed sometime in 2020. The last candidate selected is described as “Master Fake 011549”. He may have also worked for more than 2-3 years. He also was not at fault, to any extent. Therefore, equities commend that no direction may be issued as may lead to his termination from service, to accommodate the petitioner.
As on date, the petitioner is only 33 years of age. She would still have 27 years of active service, from today. We find the petitioner is wholly entitled to the relief of appointment to UPPCS (J) 2018. Subject to due verification, let the petitioner be granted appointment to UPPCS (J), 2018 against one available vacant post with national security and all consequential benefits except arrears of salary. If for any reasons it is required, a supernumerary post may be created. Let the petitioner be placed at seniority position of her batch (2018) as she may have earned against marks secured,” the Court further observed while allowing the petition.
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