Rajasthan High Court: A Division Bench of Anoop Kumar Dhand and Pankaj Bharadwaj, JJ., disposed of the petition and directed the Department to appoint the respondent.
The facts of the case are that the North Western Railway Recruitment Cell issued an advertisement for recruitment on several posts of Group ‘D’ i.e. Track Man, Traffic Khallasi, Helper, Cleaner, Cook etc. Pursuant to the said advertisement, the respondent submitted an application under the category of Other Backward Class (OBC). After participation in the process for selection, he qualified in the written examination, physical eligibility test and medical test but, subsequently his candidature was rejected as the Postal Order submitted by him was not within limitation. The respondent being aggrieved filed Original Application before the Tribunal pleading therein that the Postal Order submitted by him was well within the parameters and the amount of said Postal Order was received by the Railway Department and the same was also credited in its account but inadvertently, in the application form, the wrong year of Postal Order was mentioned. The Tribunal allowed the Original Application and directed the petitioners-Department to give appointment to him on the post of Group-D with all consequential benefits. Aggrieved by the same, instant petition was filed by the petitioner- Department.
Counsel for the petitioners submitted that the respondent is not entitled to get appointment in view of the provisions contained in Para No.8.11 of the Advertisement dated 16-12-2010. The respondent has mentioned the details of the Postal Order in his application form and as per Sub-para (XV) of Para 8.11 of the Advertisement, the application form of the respondent was liable to be rejected on the ground of furnishing incorrect information by him. Counsel argued that in para No.7.4 of the Advertisement, it is clearly mentioned that the Postal Order/Bank Drafts/Pay Order for payment of requisite fee issued prior to the date of advertisement or beyond the validity of six months, will not be accepted. Thus, in view of the conditions mentioned in Para Nos.7.4 and 8.11 of the Advertisement, the candidature of the respondent was rightly rejected and the Tribunal has committed an error in allowing the Original Application filed by the respondent.
Counsel for the respondent submitted that the mistake is an inadvertent human error and that the mistake committed by the respondent has not caused any prejudice to any third party. Thus, the Tribunal has not committed any illegality in allowing the application filed by the respondent.
The court relied on judgment Kavita Chaudhary v. Registrar (Examination), D.B. Civil Special Appeal (Writ) No.1700/2017 on 01-11-2017 in the case of “To err is human, to forgive is divine”, the mistake can be of two kinds. First kind of mistake would not be where nobody is affected by a mistake and the second mistake where a third party is affected by a mistake. The difference in two mistakes would be that whereas the rectification of the first mistake would cause no prejudice, rectification of the second would cause a prejudice.
The Court observed that this is not a case where fraud has been committed by the respondent. But the error/mistake was there on the part of the respondent in mentioning the incorrect date of the Postal Order in the application. Once the application was accepted by the petitioner-Department after getting the requisite fee amount of Postal Order, which was credited in its account and subsequently the respondent was allowed to participate in the recruitment process, the petitioner-Department cannot be permitted to reject the candidature of the respondent merely on hyper-technical ground. It is expected from the welfare state to act fairly. But in this case, the action of the petitioner-Department was totally unfair in rejecting the candidature of the respondent only on the ground that he mentioned the incorrect date of the postal order as 10-01-2010 in place of 10-01-2011. When once the requisite amount of fee was credited in the account of the petitioner department and after that the respondent was allowed to participate in the entire recruitment process, then the petitionerDepartment is stucked to change its stand.
The Court observed that it is the settled position of law that whenever there is a conflict between the substantial justice and hyper-technicality then the substantial justice should be preferred to avoid the defeat for the ends of justice. If the hypertechnical stand of the petitioner is allowed to stand as it is then it would amount to failure of justice. The judgments cited by the counsel for the petitioners are not applicable to the facts of the present case.
The Court held “The order passed by the Tribunal does not require any disturbance in the hands of this Court. Thus, the order dated 12.10.2021 passed by the Central Administrative Tribunal, Jaipur Bench, Jaipur in OA No. 291/683/2013 is confirmed.”
The Court directed the petitioner Department “to give appointment to the respondent on the post of Group-D with all consequential benefits, if he is otherwise found suitable for the said post, except monetary benefits. The said exercise shall be carried out by the petitioner within a period of three months from the date of receipt of a certified copy of this order.”[Union of India v. Harendra Gawaria, 2022 SCC OnLine Raj 463, decided on 04-02-2022]
For Petitioner(s): Mr. P.C. Sharma, Adv
For Respondent(s): Mr. Devendra Sharma, Adv and Mr. Balram Vashistha, Adv.