Pankaj v. The State Of Rajasthan

HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR S.B. Civil Writ Petition No. 658/2023 Pankaj S/o Rai Singh, Aged About 22 Years, R/o Quarter No.121, 2Nd Floor, Income Tax Colony, Jyoti Nagar, District Jaipur,Rajasthan. ----Petitioner Versus 1. The State Of Rajasthan, Through Its Principal Secretary,Department Of Animal Husbandry, Govt. Secretariat,Jaipur (Raj.).Department Of Animal Husbandry, Govt. Secretariat,Jaipur (Raj.). 2. The Rajasthan Subordinate And Ministerial Staff SelectionBoard, Jaipur Through Its Secretary, RajasthanAgriculture Management Institute Premises Durgapura,Jaipur (Raj.).Board, Jaipur Through Its Secretary, RajasthanAgriculture Management Institute Premises Durgapura,Jaipur (Raj.). ----Respondents For Petitioner(s) : Mr. Vigyan ShahFor Respondent(s): Ms. Priyanka PareekFor Respondent(s): Ms. Priyanka Pareek Mr. Nalin G. Narain HON'BLE MR. JUSTICE SUDESH BANSAL Order 19/08/2023 1.Petitioner has filed instant writ petition feeling aggrieved byrejection of his candidature for consideration on the post of LiveStock Assistant in LD/CP Category (in addition OBC Non-creamyLayer) and non considering his Disability Certificate dated19.08.2019 (Ann.5) showing 42% temporary physical impairmentin relation to his left lower limb followed by the DisabilityCertificate dated 01.08.2022 (Ann.R/2/2) of bench mark disabilityof 42% permanent physical impairment in relation to left lowerlimb part of the body. 2.Heard learned counsel for both parties and perused thematerial available on record. 3.It is not in dispute that the petitioner participated in thepresent recruitment for Live Stock Assistant Direct Recruitment-2022 in the category of LD/CP (in addition, OBC Non-CreamyLayer) and scored 28.8749%. As per the final result dated19.12.2022 declared by the Staff Selection Board, the last cut offmarks for LD/CP Category was declared as 27.7989%, thus,petitioner is higher in merit than the last cut off marks. 4.The issue is that the petitioner submitted his permanentDisability Certificate dated 25.07.2022 and digitally signedcertificate dated 01.08.2022 before the Selection Board at thetime of document verification but could not produce his previousDisability Certificate dated 19.08.2019 of temporary physicalimpairment and since the Disability Certificate dated25.07.2022/01.08.2022 was post dated to the last date forsubmission of Online application form in the present examinationi.e. 17.04.2022, therefore, the permanent disability certificate ofpetitioner was not taken into consideration, to consider thepetitioner’s candidature in LD/CP category. 5.Learned counsel for the petitioner is fair enough in acceptingthat due to one or other reason, it is bona fide error on the part ofpetitioner for not producing his Disability Certificate dated19.08.2019 (Ann.5) which is obviously prior to the presentrecruitment-2022 and if the petitioner would have been producedthis certificate, though for temporary physical impairment upto the42% but such certificate is sufficient to consider the candidatureof petitioner in LD/CP Category, because the Act of 2016 does not recognize any difference between the disability beingtemporary/permanent. As far as disability of petitioner isconcerned, same is incurable, therefore, the Disability Certificatedated 19.08.2019 which was/is already in possession of petitioner,may be ordered to be considered by the Selection Board coupledwith the permanent disability certificate dated 01.08.2022 and hiscandidature may be ordered to be considered on merits. recognize any difference between the disability beingtemporary/permanent. As far as disability of petitioner isconcerned, same is incurable, therefore, the Disability Certificatedated 19.08.2019 which was/is already in possession of petitioner,may be ordered to be considered by the Selection Board coupledwith the permanent disability certificate dated 01.08.2022 and hiscandidature may be ordered to be considered on merits. 6.Learned counsel for the Selection Board pointed out that thepetitioner never produce his Disability Certificate dated19.08.2019 before the Selection Board at the time of documentverification and only produced his disability certificate dated25.07.2022 and later on, the Disability Certificate dated01.08.2022 as reflected from the list of documents annexed withthe reply. However, counsel for Selection Board states that in case,this Court issue any direction to consider the Disability Certificateof petitioner dated 19.08.2019, same would be considered subjectto its genuineness/validity for the post in question. 7.Having heard learned counsel for both parties, it hastranspired that all the post of Live Stock Assistant in LD/CPCategory has still not filled and vacant post in this category isavailable, hence if the candidature of petitioner is directed toconsider in LD/CP Category for the post in question on the basis ofhis Disability Certificate dated 19.08.2019, no third party rightswould be affected in the present selection process, more so whenpetitioner stands higher in merit than last cut off marks in the finalresult dated 19.12.2022. 8.This Court finds that the error on the part of petitioner fornon-production of the Disability Certificate dated 19.08.2019 before the Selection Board at the time of document verificationseems to be a human, much less bona fide error for one or otherreason. To err is human and to forgive is divinity. The law permitsforgiveness for the bona fide human errors, when no third partyrights are breached nor process of law is adversely affected orprejudiced in any manner. On facts of present case, petitioner wasin possession of Disability Certificate dated 19.08.2019 at the timeof document verification and still vacant post of Live StockAssistant in category of LD/CP against recruitment 2022 isavailable as much as petitioner stands higher in merit in thiscategory, then the last cut off determined by the Selection Boardin the last result dated 19.12.2022. 9.This is a case where petitioner is already in possession ofDisability Certificate dated 19.08.2019 and claim his entitlementfor consideration of his candidature in LD/CP Category but hecould not place on record this certificate before the SelectionBoard, though counsel for the petitioner orally argued that photocopy was produced but it is not required to enter into such factualdisputes, in view of accepting bona fide error by the petitioner,therefore, following the ratio decidendi as expounded by the ApexCourt in case of Dolly Chhanda Vs. JEE [(2005) 9 SCC 779],followed in case of Food Corporation of India Vs. Rimjhim[(2019) 5 SCC 793], it would be in the interest of justice toforgive the bona fide error on the part of petitioner and to directthe Selection Board to consider his Disability Certificate dated19.08.2019, to consider the candidature of petitioner forappointment in LD/CP Category. 10.Had disability certificate dated 19.08.2019 been presented,certainly the petitioner being in higher in merit could have beenconsidered for appointment on the post of Live Stock Assistant inLD/CP Category, however it is within the jurisdiction and power ofthe Selection Board to assess the genuineness/validity of theDisability Certificate dated 19.08.2019 and subject to thatrespondent-Selection Board may consider the candidature ofpetitioner on merit. 10.Had disability certificate dated 19.08.2019 been presented,certainly the petitioner being in higher in merit could have beenconsidered for appointment on the post of Live Stock Assistant inLD/CP Category, however it is within the jurisdiction and power ofthe Selection Board to assess the genuineness/validity of theDisability Certificate dated 19.08.2019 and subject to thatrespondent-Selection Board may consider the candidature ofpetitioner on merit. 11.As a final result, this Court deems it just and proper todispose of the instant writ petition with liberty to petitioner tosubmit original Disability Certainly dated 19.08.2019 before therespondent-Selection Board within a period of two weeks fromtoday and the Selection Board shall consider this DisabilityCertificate dated 19.08.2019 subject to verification of itsgenuineness/validity and then the candidature of petitioner shallbe considered on merits for appointment on the vacant post ofLive Stock Assistant in LD/CP Category pursuant to theRecruitment-2022. The exercise be done within a period of sixweeks thereafter. 12.With aforesaid directions, the writ petition stands allowed.13.Stay application, application for vacation of stay order dated13.01.2023 and other pending application, if any, stand disposedof. (SUDESH BANSAL),J TN/118