The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No.40406 of 2023 Shradhanjali Mishra …. Petitioner Mr.S.D. Routray, Advocate -versus- State of Odisha & Others …. Opposite Parties Mr. S. Jena, AGA Mr.S.N. Patnaik, Adv. for O.P.2 CORAM: JUSTICE BIRAJA PRASANNA SATAPATHY ORDER 12.01.2024 Order No. 05. 1. This matter is taken up through Hybrid Arrangement (Virtual/Physical) Mode.
Legal Reasoning
2. Heard learned counsel appearing for the Parties. 3. This Writ Petition has been filed by the Petitioner inter alia with the following prayer:- “i) Admit the writ application. ii) Call for the record. iii) Issue rule NISI calling upon the Opp. Parties to show cause as to why the notification dated 20.11.2023 under Annexure-10 so far as the O.P. No.3 is concerned and the impugned order dated 30.11.2023 under Annexure-11 shall not be quashed. iv) And if the Opp. Parties fails to show cause or show insufficient cause, issue a writ in the nature of certiorari or any other writ / writs, direction / directions by quashing the notification dated 20.11.2023 under Annexure-10 so // 2 // far as the O.P. No.3 is concerned and the impugned order dated 30.11.2023 under Annexure-11. v) Issue a writ in the nature of mandamus or any other writ / writs direction / directions directing the opposite parties to accept the candidature of the petitioner under PwD (W) Cat-III and allow her to attend document verification process and in the event if found suitable include her name in the notification dated 20.10.2023 under Annexure-10 and consider her case for appointment as TGT Arts Teachers under PwD(W) Cate-III pursuant to the advertisement dated 23.11.2022 under Annexure-1 in order of merit within a stipulated time to be fixed by this Hon’ble Court”. 4. It is the case of the Petitioner that pursuant to the advertisement issued by the Odisha Staff Selection Commission on 23.11.2022 under Annexure-1, Petitioner made her application as against the Post of TGT Arts as a special category candidate i.e. P.w.D.(W) category-III (orthopedically handicapped).
Legal Reasoning
4.1. Learned counsel for the Petitioner contended that in the online application so submitted under Annexure-2, Petitioner clearly indicated that she belongs to P.w.D.(W) category-III. But while uploading the certificate though she indicated the certificate number as well as the date of issue of the certificate so issued in her favour under Annexure-2-Series, but wrongly uploaded the HSC pass certificate which was also uploaded showing her qualification to have passed 10th Board from Board of Secondary Education. 4.2. It is contended that even though Petitioner belongs to P.w.D.(W) category-III and she has got 60% permanent disability in terms of the certificate issued on 25.02.2019 vide Certificate No.OD0812219910161191 under Page 2 of 7 // 3 // Annexure-2-Series, but because of the wrong committed by her in not uploading the certificate, her candidature was not considered as against P.w.D women category by the Commission. The Commission instead while considering her application as against UR category, did not include her name in the merit list as she did not come within the cut-off mark so fixed for UR category candidate. 4.3. It is further contended that the Petitioner if would have been considered as against P.w.D.(W) category-III, taking into account the mark secured by her at 85.25, the cut-off mark in that category having been fixed at 75.5 % as reflected in Annexure-10, Petitioner whould have been automatically recommended by the Commission with consequential benefit of appointment. It is contended that because of the inadvertent mistake committed by her in not uploading the Disability Certificate, which was very much available with her at the time of making the application, Petitioner was prejudiced as she could not be considered as against the said category. 4.4. It is contended that since the Petitioner has no admitted laches and because of inadvertent mistake she could not upload the disability certificate, in view of the recent decision of the Hon’ble Apex Court in the case of Vashist Narayan Kumar vs. The State of Bihar & Ors. in Civil Appeal No.1 of 2024 (Arising out of SLP (C) No.12230 of 2023), disposed of on 02.01.2024, Petitioner’s case is required to be considered as against Page 3 of 7 // 4 // P.w.D Women category-III. Hon’ble Apex Court in Para- 10, 15, 19 & 26 of the judgment has held as follows:- “10. The question that arises for consideration is whether the error committed in the application form, which was uploaded is a material error or a trivial error and was the State justified in declaring the appellant as having failed on account of the same? 15. Recently this Bench in Divya vs. Union of India & Ors., 2023:INSC:900 = 2023 (13) Scale 730, while declining relief to candidates who acquired eligibility after the date mentioned in the notification carved out a narrow exception. There, the judgment in Ajay Kumar Mishra vs. Union of India & Ors., [2016] SCC OnLine Del 6563, a case very similar to the facts of the present case, was noted. In Ajai Kumar Mishra (supra), Indira Banerjee, J. (as Her Ladyship then was) speaking for the Division Bench of the Delhi High Court in para 9 stated as under:- 9. It is true that whenever any material discrepancy is noticed in the application form and/or when any suppression and/ or mis- representation is detected, the candidature might be cancelled even after the application has been processed and the candidate has been allowed to participate in the selection process. However, after a candidate has participated in the selection process and cleared all the stages successfully, his candidature can only be cancelled, after careful scrutiny of the gravity of the lapse, and not for trivial omissions or errors." (emphasis supplied) The exception for trivial errors or omissions is for the reason that law does not concern itself with trifles. This principle is recognized in the legal maxim - De minimis non curat lex. 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. 26. For the reasons stated above, we set aside the judgment of the Division Bench of the Patna High Court in LPA No. 1271 of 2019 dated 22.08.2022 and direct the respondent-State to treat the appellant as a candidate who has "passed", in the selection process held under the advertisement No. 1 of 2017 issued by the Central Selection Board (Constable Recruitment), Patna with the date of birth as 18.12.1997. We further direct that if the appellant is otherwise not disqualified, the case of the appellant be considered and necessary appointment letter issued. We further direct that, in the event of there being no vacancy, appointment letter will still have to be issued on the special facts of this case. We make the said direction, in exercise of powers under Article 142 of the Constitution of India. We further direct that the State will be at liberty in that event to adjust the vacancy in the next recruitment that they may resort to in the coming years. We notice from the written submissions of the State that 21,391 vacancies Page 4 of 7 // 5 // have been notified in Advertisement No.1 of 2023 and it is stated that the procedure for selection is ongoing.
Decision
We place the said statement on record. We direct compliance to be made of the aforesaid direction within a period of four weeks from today”. 4.5. Placing reliance on the aforesaid decision, it is contended that appropriate order be issued to the Commission to consider the candidature of the Petitioner as against PwD (W) category-III and recommend her claim if she comes within the cut-off mark so fixed in that category at 75.5%. 4.6. Mr. Routray, further contended that since there is an interim order protecting the interest of the Petitioner by keeping one post vacant in PWD(W) Category, the Commission will not face any difficult in recommending her name and consequential benefit of appointment by the State. 5. Mr. S.N. Pattnaik, learned counsel appearing for the Commission on the other hand contended that since in terms of the advertisement, Petitioner did not upload the disability certificate though everything was indicated in the application form, her candidature was considered as against UR vacancy. Since Petitioner could not come within the cut-off mark so fixed for UR category candidate, her name was not included in the select list. 5.1. It is accordingly contended that there is no illegality or irregularity on the part of Commission in not considering the application of the Petitioner as against P.w.D.(W) category-III. It is also contended that Petitioner had earlier approached this Court in W.P.(C) No.36404 of Page 5 of 7 // 6 // 2023 and pursuant to the order passed by this Court the claim of the Petitioner was considered. But vide order dtd.30.11.2023, the same was rejected on the ground that Petitioner has not uploaded the disability certificate while making the on line application under Annexure-2. 6. Learned Addl. Government Advocate for the State on the other hand contended that if on reconsideration, Petitioner’s case will be recommended by the Commission, appropriate action can be taken by the Government. 7. Having heard learned counsel for the Parties and after going through the materials available on record, this Court finds that admittedly Petitioner belongs to P.w.D (W) category with 60% disability and in the certificate enclosed to the writ petition at Page-32 vide Annexure-2- Series, the certificate was issued on 25.02.2019 vide Certificate No. OD0812219910161191. 7.1. It is found that in the application submitted by the Petitioner under Annexure-2, she clearly indicated the Certificate Number and date of issue as 25.02.2019. But instead of uploading the disability certificate she uploaded the High School Certificate which was also uploaded in support of her date of birth and qualification for having passed the 10th Board. In view of such inadvertent mistake committed by the Petitioner and placing reliance on the decision of the Hon’ble Apex Court as cited (supra), this Court is of the Page 6 of 7 // 7 // view for such inadvertent mistake, the candidature of the Petitioner could not have been considered as against UR vacancy instead of considering the same as against PWD(W) category. 7.2. It is also found from the record that Petitioner if would have been considered as a PWD(W) category-III candidate having secured 85.25 mark as against cut-off mark 75.5%, she would have been recommended by the Commission. Taking into account the fact that one post has been kept reserved in terms of the interim order passed by this Court on 20.12.2023, this Court while disposing the writ petition directs the Commission to consider the candidature of the Petitioner as against P.w.D.(W) category-III. If on such consideration, it is found that Petitioner has secured more mark than the cut-off marked fixed at 75.5% in the said category, then Commission shall recommend her name to the Govt.- Opposite Party No.1 within a period of two (2) weeks from the date of receipt of this order. On receipt of the recommendation from the Commission, consequential action will be taken by Opposite Party No.1 within a further period of two (2) weeks. Consequentially the order under Annexure-11 is hereby quashed. 8. Accordingly, the Writ Petition stands disposed of. (Biraja Prasanna Satapathy) Judge Signature Not Verified Digitally Signed Signed by: SUBRAT KUMAR BARIK Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 18-Jan-2024 11:13:58 Subrat Page 7 of 7