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HIGH COURT OF DELHI
W.P.(C) 16671/2023
UNION OF INDIA AND OTHERS .....Petitioners
Through: Mr. Ruchir Mishra
Through: Mr. Ashish Nischal
Singh, Advs.
HON'BLE MR. JUSTICE AJAY DIGPAUL
JUDGMENT
12.02.2025 C. HARI SHANKAR, J.
Review Pet. 17/2025 and CM APPLs. 2398-2401/2025
1. We had, in our order dated 16 January 2025, expressed a tentative opinion that no ground for review of our judgment dated 3 October 2024 was made out. However, as Mr. Ruchir Mishra, learned Counsel for the UOI-review petitioner submitted that the judgment would open floodgates, we gave an opportunity to him to take instructions from his client as to whether the review petitioner was willing to implement the judgment of the Tribunal without treating this matter as a precedent.
2. Mr. Mishra, learned Counsel for petitioner, has today handed over to us a letter dated 4 February 2025 issued by the Director (PA- Legal), Department of Posts, Postal Accounts Wing, which states that the petitioner was not in a position to implement the judgment under review.
3. We have, therefore, considered the merits of the review petition after hearing Mr. Mishra in that regard.
4. The dispute in WP (C) 16671/2023 related to a Limited Departmental Competitive Examination[1] undertaken by the respondent Suresh Kumar Meena for promotion from the grade of Sorting Assistant to the grade of Assistant Accounts Officer[2]. The respondent belongs to the Scheduled Tribes[3]. The examination consisted of six stages. Undisputedly, an ST candidate was required to score only 30% marks in each paper to pass. Passing in all the six papers was necessary to qualify for promotion.
5. The respondent scored 40% marks in two of the papers, 40 marks each in Paper-III and Paper-IV, 42 marks each in Paper-I and Paper-V and 55 marks in Paper-VI, but scored only 29 marks in Paper-II, which was 1 mark less than the passing marks.
6. The respondent approached the Central Administrative “LDCE”, hereinafter “AAO”, hereinafter “ST”, hereinafter Tribunal[4], praying for a direction to the petitioner to award him one grace mark in Paper-II, which would enable him to pass all the papers and secure promotion as AAO.
7. The Tribunal allowed the OA and directed that the respondent be awarded one grace mark in Paper-II as prayed by him.
8. Aggrieved thereby, the petitioner approached this Court by means of the present writ petition.
9. The Tribunal placed reliance on an order dated 20 September 1996 of the Department of Posts, the relevant paragraph of which reads thus: "However, it has been decided that grace marks not more than what a candidate actually secures in a particular paper should be allowed e.g. if a candidate has secured 17 marks he can be granted a maximum of 16 marks where passing standards is 33 and where passing standard is 50 a candidate can be granted maximum 25 grace marks if he himself has obtained 25 marks. If by doing so a candidate obtains qualifying standards both individual papers and in aggregate he may be declared eligible for review of result subject to fulfilling other conditions for review of result of failed candidates. In case a candidate secured less marks than 17/ 35 as discussed above, these cases should not be considered for grant of grace marks. These guidelines would be applicable for all Departmental examinations and for all categories of staff in whose case such review of failed candidates is allowed under the existing rules."
10. We concur with the view of the Tribunal that, as the aforesaid paragraph from the instruction of 20 September 1996 required that a mandate used the expression “should be allowed”, there was no “Tribunal” hereinafter discretion with the petitioner in so far as the award of grace marks is concerned.
11. It is worthwhile to reproduce, here, paras 6 to 9 of the judgment passed by us, of which review is now sought, thus:
hereby direct the respondents to consider the case of the applicant for grant of one more mark to him. In case, he is otherwise eligible, he shall be considered for the post of AAO. This exercise shall be completed within a period of three months from the date of receipt of a certified copy of this Order.”
7. Mr. Mishra, learned Counsel for the petitioners has drawn our attention to a communication dated 28 January 2020 from the Senior DDG (PAF) in the office of the Department of Posts to the National Commission for Schedule Tribes, paras 1 and 2 of which read thus:
8. Mr. Mishra also places reliance on grounds G and H of the present petition, which may be reproduced as under:
9. Mr. Mishra submits that the decision to restrict the number of passing marks across the Board to 10 was taken in the interest of filling up as many vacancies as possible.”
12. From the afore-extracted paragraphs, it is evident that the contention of the learned Counsel for the petitioners before us, when the writ petition was argued, was predicated on a communication dated 28 January 2020 from the Senior DDG (PAF) in the office of Department of Posts. The said communication stands extracted in Para 7 of our order, extracted supra. The stand taken by the petitioner before us was that, despite the above position, the petitioner had taken a decision to grant upto 10 grace marks in Paper-IV. Thus, while the petitioners were apparently agreeable to grant 10 grace marks in Paper-IV, they were not agreeable to grant even 1 grace mark in Paper-II.
13. In that view of the matter, we found the decision of the petitioner not to grant 1 grace mark to the respondent in Paper-II as unsustainable and upheld the order passed by the Tribunal.
14. The present review petition seeks review of the said judgment passed by us.
15. The main stand of the petitioner in the review petition is that the policy for review of grant of grace marks for Scheduled Caste and Scheduled Tribe candidates who had not scored the requisite qualifying marks in the LDCE, stood discontinued by a letter dated 8 April 2016. In that view of the matter, the review petition seeks to assert that this Court as well as the Tribunal had erred in following the earlier instruction dated 20 September 1996 of the Department of Posts.
16. Mr. Ruchir Mishra, learned Counsel for petitioner took us to the order dated 8 April 2016. We find that, while this order does talk about discontinuance of the policy for awarding grace marks, it does not rescind, in so many words, the order dated 20 September 1996. There is, in fact, no reference to the said order in the order dated 8 April 2016.
17. We also queried of Mr. Ruchir Mishra, learned Counsel for petitioner as to how, if the Department of Posts had taken a decision to discontinue grant of grace marks for failed reserved category candidates in the LDCE, they had decided to grant 10 grace marks in Paper-IV. He submits that the decision to grant 10 grace marks in respect of Paper-IV was consequent to interaction with the SC/ST Commission which advised the Ministry to take some steps as several candidates had failed in Paper-IV. As such, he submits that a policy decision was taken by the Ministry, based on the advice of SC/ST Commission that, in order to maximize recruitment, 10 grace marks would be given in Paper-IV.
18. To our mind, the petitioners cannot approbate and reprobate. If it is their case that they had done away with the policy of grace marks for persons who had not scored qualifying marks in LDCE, that policy had to apply across the board. It could not be selectively applied only to candidates who failed in papers other than Paper-II and while granting grace marks to candidates who failed in Paper-IV.
19. It must be remembered that all the six papers were part of one LDCE.
20. For this reason too, we are in agreement with the view of the Tribunal that the respondent was entitled to be granted one grace mark in Paper-II.
21. We therefore find no ground to review our judgment.
22. The review petition is accordingly dismissed. The pending applications also stand dismissed.
C. HARI SHANKAR, J.