- (1.) THIS special appeal has been field against the judgment and order dated 12.4.2006 by which the writ petition has been dismissed on the ground that findings of fact cannot be questioned in the writ petition.
(2.) WHILE assailing the impugned order, Sri N.K. Pandey, learned counsel for the appellant has submitted that respondents' version that petitioner has secured 298.39 marks, is incorrect. It is stated that in view of the subsequent application made by the appellant annexing therewith his original testimonials, there was no factual dispute regarding obtaining less marks than the last selected candidate, therefore, His Lordship in the impugned judgment has erred in dismissing the writ petition on the ground that disputed questions of fact is involved. The facts giving rise to this special appeal are that petitioner applied for Special B.T.C. Training Course-2004. Alongwith the application form, he disclosed his marks, according to which quality point marks of the petitioner was 289.39. At that point of time result of his B.Ed. examination was awaited. At the time of selection, the last candidate in the category in which the petitioner falls, was selected at qualitative point marks 309.90. It appears that a corrigendum was issued by Director, State Council for Educational Research and Training U.P., Lucknow, inviting applications that in case marks of any person have wrongly been calculated, he may make representation annexing the original testimonials. After the aforesaid advertisement was issued, the appellant filed Writ Petition No. 16974 of 2005, Sanjeev Kumar Mishra v. State of U.P. and others, as he was not selected. The writ petition was disposed of with a direction to the respondents to consider petitioner's representation. Pursuant thereto, the petitioner submitted a representation before respondent No. 3 annexing therewith the original marks sheets including that of his B. Ed. examination. On the aforesaid representation, the impugned order dated 27.1.2006 was passed by respondent No. 3 holding that petitioner has secured 289.39 quality point marks whereas the last candidate in the category of the petitioner has secured 309.90 marks, therefore, marks of the petitioner being less than the last candidate selected in his category, he cannot be set for training. The appellant thereafter filed writ petition No. 19936 of 2006 which was dismissed vide order and judgment dated 12.4.2006 on the ground that disputed questions of fact cannot be questioned in the writ petition. This judgment is impugned in the present special appeal.
(3.) WHILE filing the present special appeal, in paragraph No. 2 of the affidavit in support of stay application, the petitioner has disclosed statement of marks secured by him, according to which he has secured 316 quality point marks on adding of the qualitative marks of his B.Ed. examination. Statement of marks given in paragraph No. 2 of the affidavit is quoted below : JUDGEMENT_853_ADJ1_2011Image1.jpg Reply of paragraph No. 2 of the affidavit has been given in paragraph No. 4 of the counter affidavit filed by the State which is thus: "2. That the contents of paragraph No. 2 of the affidavit are not admitted as stated. It is further stated that the appellant/petitioner in the initial stage while filling up his application form for the Special B.T.C. Training 2004 has himself mention the total quality point marks 289.33. It is pertinent to mention here that the appellant in the said application form dated 12.2.04 which has been filled up in his own handwriting, has mentioned himself that he secure 362 out of 600 in the written examination and 123/200 in practical examination in B.Ed. examination 2003 and he has also given a declaration is mention in the proforma application form No. 003058, by which he has declared that all the details mentioned from serial No. 1 mentioned in the application form are true and no fact has been suppressed and prior to the Section or after inquiry the descriptions given by him are found false or wrong the prescribed officers of the Institute shall have a right not only to cancel his proceed against him. (A photostat copy of the Original application form is being filed herewith and is marked as Annexure No. C.A.-1 to this affidavit. A bare perusal of the aforesaid annexure clearly shows that the marks of B.Ed. Examination of 2003 are forged and fabricated. It would out of place to mention here that if the mark sheet dated 10.2.2004 of B.Ed. annexed as Annexure No. 1 to the affidavit at page 31 was in the knowledge of the appellant then why a forged and fabricated entry of the marks of B.Ed. examination 2003 was mentioned in the application form." ;