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HIGH COURT OF DELHI
W.P.(C) 16671/2023
UNION OF INDIA AND OTHERS .....Petitioners
Through: Mr. Ruchir Mishra, Mr. Sanjiv Kr. Saxena, Mr. Mukesh Kr. Tiwari and Ms. Reba Jena Mishra, Advs.
Through: Mr. Asish Nischal, Mr. Arun Nischal and Mr. Shivam Kumar Singh, Advs.
HON'BLE DR. JUSTICE SUDHIR KUMAR JAIN
JUDGMENT
03.10.2024 C.HARI SHANKAR, J.
1. The respondent, a Scheduled Tribe[1] candidate working as Sorting Assistant in the Department of Posts, underwent the 2018- 2019 Limited Departmental Competitive Examination[2] for promotion to the post of Assistant Accounts Officer[3]. The examination consisted of six papers. There is no dispute that while a general category “ST” hereinafter “LDCE” hereinafter “AAO” hereinafter candidate required 40% marks to pass in each paper, a ST candidate required only 30%. A candidate had to pass in all papers to qualify for promotion as AAO.
2. As luck would have it, the respondent scored 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 could score only 29 marks in Paper-II which was one mark short of the requisite 30% passing marks. The respondent, therefore, approached the National Commission for SC/ST and also petitioned the Central Administrative Tribunal[4] by way of OA 1526/2022, in which the impugned judgment has come to be passed. The respondent’s prayer, before both fora, was for a direction to the petitioners to award him that one extra grace mark, which would enable him to pass all papers and secure promotion as AAO.
3. The learned Tribunal upheld the respondent’s entitlement to one grace mark in Paper-II and thereby allowed the OA. Aggrieved by the said decision, the Union of India, through the Department of Posts, has approached this Court under Article 226 of the Constitution of India.
4. We have heard Mr. Mishra, learned Counsel for the petitioners and Mr. Nischal, learned Counsel for the respondent at some length.
5. The award of grace marks is admittedly governed by an order “the learned Tribunal” hereinafter dated 20 September 1996 of the Department of Posts, the relevant paragraph of which reads as under: "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 an 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." The use of the expression “should be allowed”, employed in the aforeextracted paragraph of the order dated 20 September 1996 makes it clear that there is no discretion with the petitioner insofar as the awarding of grace marks is concerned. Simply put, a candidate would be entitled to one mark less than the marks obtained by the candidate, as grace marks. If, by awarding the grace marks, the candidate clears the paper, so be it.
6. As already noted, the respondent has scored more than the requisite passing marks in all the papers except Paper-II in which he needed only one mark to pass the paper. The respondent having scored 29 marks, was entitled, as per the order dated 20 September 1996, to be awarded up to 28 grace marks. The respondent was, however, seeking only one mark, and the learned Tribunal has, in our view, correctly held that he was entitled to be awarded the said grace mark. Paras 8 and 9 of the impugned order read thus:
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:
(ii) Since most of the candidates have failed in paper no. IV (i.e. Telecom Accounts and USOF), therefore, the competent authority approved granting of above grace marks uniformly to all the candidates in paper
(iii) The candidate should have secured minimum pass percentage marks (30%) in all other papers except the one in which the individual failed i.e. paper IV.
(iv) The candidate should have done reasonably well in all other subjects/papers.
2. Accordingly, the category wise lists of the candidates of SC and ST candidates based on the above criteria, was prepared and promotion orders in respect of total 54 candidates with the break of SC-21 and ST-33 was issued vide this office OM NO. 301(35)/2019/PA-Admn. III/3127-3285 dated 20.01.2020 promoting them to the cadre of Assistant Accounts Officer of IP&TAFS Gr. B.”
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.
10. While we have no doubt about the bona fides of the decision to grant 10 grace marks across the Board, the decision cannot be contrary to the petitioner’s own office order. The decision taken by the petitioner, as reflected in the afore-extracted communication dated 28 January 2020, would indicate that irrespective of the marks obtained by the candidate, 10 grace marks would be awarded. In other words, a candidate who would obtain 8 marks would also get 10 grace marks and a candidate who would obtain 20 marks would also get 10 grace marks. This is clearly contrary to the OM dated 20 September 1996 of the petitioner, and cannot sustain.
11. The learned Tribunal has only held that the respondent was entitled to the benefit of the OM dated 20 September 1996 for one additional mark in Paper-II, as sought by him and has directed the petitioners to consider the case of the respondent in that regard.
12. If the respondent is otherwise eligible, the Tribunal has held that the respondent be considered for the post of AAO.
13. We do not find any error in the impugned decision of the learned Tribunal as would justify interference within the limited confines of our jurisdiction under Article 226 of the Constitution.
14. The petition is accordingly dismissed.
C.HARI SHANKAR, J. DR.