Sushil Kumar vs State Of U.P. And 3 Others
2021 Latest Caselaw 8581 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


 
AFR
 
Court No. - 5
 

 
Case :- WRIT - A No. - 7755 of 2021
 

 
Petitioner :- Sushil Kumar
 
Respondent :- State Of U.P. And 3 Others
 
Counsel for Petitioner :- Shantanu Khare
 
Counsel for Respondent :- C.S.C.,Arun Kumar
 

 
Hon'ble Saral Srivastava,J.

1. Heard Sri Siddharth Khare, learned counsel for the petitioner, learned Standing Counsel for respondent nos.1 & 2, and Sri Arun Kumar learned counsel for respondent no.3.

2. The petitioner by means of the present writ petition has prayed for the following relief:-

"(a). a writ, order or direction of a suitable nature commanding the respondents to forthwith grant appointment to the petitioner as an Assistant Teacher in a Junior Basic School in pursuance to his selection in Assistant Teacher Recruitment Examination-2019, within a period to be specified by this Hon'ble Court, in accordance with the district allotted to the petitioner;

(b). a writ, order or direction of a suitable nature commanding the respondents to permit the petitioner to function as an Assistant Teacher in a Junior Basic School under the respondents and to pay the petitioner his regular monthly salary on the said post regularly every month;

(c). any other writ, order or direction as this Hon'ble Court may deem fit and proper in the circumstances of the case;

(d). award cost of the petition to be paid to the petitioner."

3. The petitioner has appeared in the selection of Assistant Teacher Recruitment Examination-2019. The petitioner was selected in the written examination and was called for counseling. The petitioner appeared in the counseling. According to the petitioner, his candidature was rejected on the ground that he has given wrong marks of the High School in the application form. In the aforesaid backdrop, he has prayed for the aforesaid relief.

4. Learned counsel for the petitioner submits that in the marks sheet downloaded from the website of Madhyamik Shiksha Parishad, Uttar Pradesh, Prayagraj, it is evident that the grace marks which has been awarded to the petitioner in the subjects of Mathematics and Science have been included in the actual marks obtained by him in those subjects. Accordingly, he submits that if the grace marks are added in actual marks, he has secured 328 marks which have been correctly filled in by him in the application form. He submits that Regulation 20 of Chapter XII of the U.P. Intermediate Education Act, 1921 (hereinafter referred to as 'the Act, 1921') does not preclude the grace marks awarded to a candidate to be added in the marks secured by a candidate in a subject, therefore, in the original marks sheet issued by the Board of High School & Intermediate Education, U.P., the grace marks ought to have been added in the marks secured by petitioner in the subjects of Mathematics and Science.

5. He further submits that petitioner has correctly filled in the marks secured by him in the application form. He further contends that even if the quality point marks are calculated treating the petitioner to have secured 325 marks, the aggregate of the petitioner would be 67.30 which is much more than the last selected candidate who is allotted district Sitapur. Thus, he submits that the authorities have acted illegally in rejecting the candidature of the petitioner.

6. He lastly contends that there is no stipulation in the advertisement that grace marks are not to be included while filling up the marks obtained in High School, and therefore, for this reason also, the respondents-authorities have acted illegally in rejecting the candidature of the petitioner.

7. Per contra, learned counsel for the respondents would contend that the marks sheet which has been relied upon by the petitioner, Annexure 8 to the writ petition, is a provisional marks sheet wherein, in paragraph 1 under the heading 'DISCLAIMER', it is mentioned that this is not the original marks sheet. He has further placed reliance upon paragraph 3 of the 'DISCLAIMER' clause to contend that it is clearly mentioned that neither Board of High School & Intermediate Education, Uttar Pradesh, Prayagraj nor service provider is responsible for any inadvertent error that may have crept into the scoreboard/result being published on the website of Uttar Pradesh Madhyamik Shiksha Parishad. He further submits that this is a provisional marks sheet and the marks recorded therein are not final and conclusive.

8. He submits that the marks recorded in the original marks sheet, Annexure 3 to the writ petition, are conclusive and final. He submits that there is no pleading in the writ petition that petitioner has ever objected that grace marks awarded to him in mathematics & science subjects be added in actual marks secured by him or has submitted an application for correction in the original marks sheet, therefore, the petitioner cannot contend now that there is discrepancy in the original marks sheet issued by the Board of High School & Intermediate Education, U.P. He further placed reliance upon paragraph 4 of the Government Order dated 04.12.2020 to contend that in the instant case, petitioner has filled in more marks than obtained i.e. 328 instead of 325 marks with a purpose to obtain selection anyhow; he submits that paragraph 4 of the Government Order dated 04.12.2020 is explicit and provides that in such a case, the candidature of a candidate shall be rejected.

9. He submits that in this view of the fact, this is not a fit case where this Court should exercise its power under Article 226 of the Constitution of India.

10. I have considered the rival submissions of the parties and perused the record.

11. Learned counsel for the petitioner has relied upon the marks sheet downloaded from the website of Madhyamik Shiksha Parishad, Uttar Pradesh, Prayagraj, Annexure 8 to the writ petition in support of his contention that petitioner has supplied correct marks of High School in the application form. At this point, it would be apt to refer to the 'DISCLAIMER' clause of the mark sheet which is being extracted hereinbelow:-

"DISCLAIMER

1. This is a Computer Generated Provisional Score Card. This result has been provisionally announced. The results published on website are not immediate information to the examinees. These cannot be treated as original mark sheets. Original mark sheets are to be issued by the Board separately.

2. Date provided by Board of High School & Intermediate Education Uttar Pradesh, Prayagraj.

3. Neither Board of High School & Intermediate Education, Uttar Pradesh, Prayagraj nor service provider is responsible for any inadvertent error that may have crept in the score board/results being published on UTTAR PRADESH MADHYAMIK SHIKSHA PARISHAD (UPMSP) Website.

4. In case of any Clarification, Please contact UTTAR PRADESH MADHYAMIK SHIKSHA PARISHAD."

12. Paragraph 1 of the DISCLAIMER clause unequivocally declares that computer-generated provisional scorecard cannot be treated as original marks sheet. The original marks sheet is to be issued by the Board separately. Paragraph 3 of the DISCLAIMER clause provides that neither Board of High School & Intermediate Education, Uttar Pradesh, Prayagraj nor service provider is responsible for any inadvertent error that may have crept in the score board/result being published on the website of UTTAR PRADESH MADHYAMIK SHIKSHA PARISHAD (UPMSP).

13. A perusal of paragraph 3 of the DISCLAIMER clause clearly shows that the marks sheet, Annexure 8 to the writ petition, which has been uploaded from the website of Uttar Pradesh Madhyamik Shiksha Parishad, Prayagraj was not uploaded by the Board of High School and Intermediate Education, Uttar Pradesh, Prayagraj. It is also clear from paragraph 1 of the DISCLAIMER clause that the computer-generated marks sheet is provisional and not a final marks sheet. The marks which have been mentioned in the mark sheet issued by the Board of High School and Intermediate Education, Uttar Pradesh, Prayagraj in respect of Mathematics and Science subject do not include the grace marks. There is nothing on record to show that petitioner has ever objected the Board for not including the grace marks awarded to him in the subjects of Mathematics and Science, therefore, the petitioner cannot be allowed to raise this contention at this stage that the Board has committed error in not including the grace marks awarded to him in Mathematics and Science subjects.

14. So far as the contention of learned counsel for the petitioner to Regulation 20 of Chapter XII of Intermediate Education Act, 1921 is concerned, it is worth mentioning that the object of the grace marks is to give certain benefit to a candidate to promote him to the next class. The grace marks have not been secured by the petitioner and therefore, they cannot be included in the actual marks obtained by him in the subjects in which the grace mark has been awarded to him. The grace marks are only notional and are not added in the aggregate to change the percentage.

15. The Apex Court in the case of Maharashtra State Board of Secondary & Higher Secondary Education Vs. Amit (2002) 6 SCC 153 has elaborated the object for awarding grace marks. The relevant extract of paragraph 6 of the said judgment is being reproduced hereinbelow:-

"6...However, before adverting to the provisions of the aforesaid Regulation, we consider it appropriate to notice the principles which the court has to keep in mind while dealing with a case of this nature where grace marks are claimed under the relevant Regulations. It cannot be disputed that the academic standards are laid down by the appropriate authorities which postulate the minimum marks that a candidate has to secure before the candidate can be declared to have passed the examination. The award of grace marks is in the nature of a concession, and there can be no doubt that it does result in diluting academic standards. The object underlying the grant of grace marks is to remove the real hardship to a candidate who has otherwise shown good performance in the academic field but is losing one year of his scholastic career for the deficiency of a mark or so in one or two subjects, while on the basis of his overall performance in other subjects, he deserves to be declared successful. The appropriate authorities may also provide for grant of grace marks to a candidate who has taken part in sports events etc., considering the fact that such candidates who have obtained a level of proficiency in any particular game or event may have devoted considerable time in pursuit of excellence in such game or event. However, a rule for the award of grace marks must be construed strictly so as to ensure that the minimum standards are not allowed to be diluted beyond the limit specifically laid down by the appropriate authority. It is only in a case where the language of the statute is absolutely clear that the claim for the award of grace marks can be sustained. Normally the court shall be slow to extend the concession of grace marks and grant a benefit where none is intended to be given by the appropriate authority. (See Board of School Education, Haryana Vs. Arun Rathi 1994 (2) SCC 526).

16. Therefore, the contention of learned counsel for the petitioner that Regulation 20 of Chapter XII of the Act, 1921 does not put any bar of adding grace marks awarded to the petitioner in the actual marks obtained by him is misconceived for the reason that the purpose of awarding grace mark to a candidate is to give him the benefit of promotion in the next class. Accordingly, the aforesaid contention of learned counsel for the petitioner is misconceived.

17. So far as the contention of learned counsel for the petitioner that if the merit is calculated based on marks mentioned in the original High School marks sheet i.e. 325 even then, petitioner would qualify as his quality point marks would be 67.30, and therefore, it is wrong to say that petitioner has filled in wrong marks in the application form with an object to obtain selection by any means.

18. Learned counsel for the petitioner has invited the attention of the Court to paragraph 20 of the writ petition which is being extracted hereinbelow:-

"20. That even in case 3 marks are reduced from the total of the marks secured by the petitioner in High School Examination even then the quality point marks secured by the petitioner aggregate 67.30 which is much more than the last candidate selected and allotted district Sitapur as a district of his appointment."

19. A perusal of paragraph 20 of the writ petition shows that a bald averment has been made about the fact that even if three marks are reduced from the actual marks secured by the petitioner in the High School, the aggregate quality point marks of the petitioner would be 67.30 which is more than the last selected candidate.

20. The petitioner has not stated in the writ petition about the quality point marks secured by the last selected candidate. Strangely, the petitioner without knowing the actual quality point marks secured by the last selected candidate has made the statement in paragraph 20 of the writ petition that the petitioner's aggregate is much more than the last selected candidate.

21. Since the averments made in paragraph 20 of the writ petition are bald and vague, therefore, no reliance can be placed upon it.

22. It is further relevant to mention that Apex Court in the case of Rahul Kumar Vs. State of Uttar Pradesh & Others in Writ Petition (Civil) No.378 of 2021 while interpreting Government Order dated 04.12.2020 has held that where the petitioner has filled in wrong marks to secure selection anyhow, his candidature deserves to be rejected.

23. So far as the contention of learned counsel for the petitioner that the advertisement does not stipulate that grace marks are to be excluded while filling total marks secured by a candidate, the said contention is misconceived for two reasons; there is no pleading in the writ petition in respect of the said contention nor the advertisement has been enclosed by the petitioner with the writ petition to buttress the aforesaid submission. Secondly, the grace marks are notional and have been awarded with an object that a candidate should not lose one year and therefore, the concession given by the examination body to the candidate for promotion cannot be added to the actual marks obtained by the candidate as the grace marks are not secured by the petitioner on merit. It is worth pointing out that if the grace marks are allowed to be added to the actual marks obtained by a candidate, that would put other candidates at disadvantage, who have secured and maintained high educational standards by securing higher marks by their sheer hard work and determination.

24. Thus, for the reasons given above, the writ petition lacks merit and is accordingly, dismissed. There shall be no order as to costs.

Order Date :- 26.7.2021

Sattyarth