Delhi High Court
Nivedita vs Bharat Sanchar Nigam Ltd & Ors. on 5 February, 2013
Author: Pradeep Nandrajog
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Decision: February 05, 2013
+ W.P.(C) 606/2013
NIVEDITA ..... Petitioner
Represented by: Ms.Jayasree Narasimhan and
Mr.Sudrshan Rajan, Advocates.
versus
BHARAT SANCHAR NIGAM LTD & ORS. ..... Respondents
Represented by: Mr.Sameer Agrawal, Advocate with
Mr.Shiv Singh, AGM.
CORAM:
HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
HON'BLE MS. JUSTICE VEENA BIRBAL
PRADEEP NANDRAJOG, J. (Oral)
1. BSNL was to conduct a Limited Internal Competitive
Examination for promotion to the post of Assistant from amongst Upper
Division Clerks who had rendered 5 years‟ service in the grade.
2. As per Office Memorandum dated August 18, 2005, while
notifying the scheme for the written test it was indicated to the candidates
that their knowledge would be tested with reference to two papers. With
respect to the two papers titled as Paper-I and Paper-II it was indicated as
under:-
Paper Subject Marks Duration Timings
Paper-I i) General Awareness 50 3 Hours 10.00 AM
ii)General English 50 To
iii)Computer Fundamentals 50 1.00 PM
Paper Subject Marks Duration Timings
Paper-II i)Noting & Drafting 50 3 Hours 2.00 PM
ii)Service Rules 100 To
5.00 PM
3. Relevant would it be to note that one of the subject of Paper-I
was „Service Rules‟. The Office Memorandum elaborated further by briefly
describing the syllabus and pertaining to the subject „Service Rules‟ made a
reference to FR&SR, but limited as under:-
"FR&SR (General Rules)
It will cover following topics:-
(a) Fixation of Pay on Promotion/Fixation of Pay on
Appointment to a post not involving higher
responsibilities/Stepping Up of Pay (FR22)
(b) Increments (FR-24&26).
(c) Advance Increments (FR-27)."
4. And we highlight that the applicability of the Fundamental Rules
and Service Rules i.e. FR&SR was limited to FR-22, FR-24, FR-26 and FR-
27. We further highlight that the syllabus otherwise encompass the BSNL
Service Rules.
5. Pertaining to the age of superannuation, Rule-55 of the BSNL
Rules stipulates as under:-
"Rule 55 : Retirement
(i) On Medical Grounds : .......
(ii) On attaining the age of superannuation :
(a) The age of superannuation shall be completion of 60
years and an employee shall retire from service on the
last day of the month in which he attains the age of
superannuation.
(b) .....
(c) ....."
6. And relevant would it be to state that the Rule framed by BSNL
is at slight variance with FR-56 which states that a Government servant shall
retire from service on the afternoon of the last day of the month in which he
attains the age of superannuation. The difference being that the BSNL Rule
does not have the words „on the afternoon‟.
7. Question No.11 of Paper-I, which is the bone of contention
between the parties gave two options to the candidates : (i) „True‟, (ii)
„False‟.
8. And the question was :
"Every officer/official shall retire from service on
superannuation on the last day of the month in which
he/she attains age of 60 years."
9. The petitioner responded by ticking the option „True‟ as the
correct answer. The respondent awarded her no marks on the premise that as
per FR-56 the correct/true answer would be „Every officer/official shall retire
from service on superannuation on the afternoon of the last day of the month
in which he/she attains age of 60 years.‟
10. Since the words „on the afternoon‟ were missing in the question,
respondent took the stand that the answer had to be „False‟ because the
statement contained in the question was incorrect.
11. Now, the question does not make a reference to FR-56. The
syllabus prescribed made limited application of the Fundamental Rules to be
known by the candidates as a part of the syllabus and as noted above only
FR-22, FR-24, FR-26 and FR-27 were a part of the syllabus. The syllabus
made applicable the Service Rules of BSNL as a part thereof and thus it is
apparent that in view of Rule-55 of BSNL CDA Rules 2006 the correct
answer would be „True‟.
12. The petitioner has been wronged. Unfortunately, she has missed
the cut-off by 0.5 marks. Since she had answered the question correctly she
would be entitled to 2 marks.
13. Lest we be accused of acting as experts, we may simply
highlight that the exercise conducted by us warrants no expert knowledge. It
is settled law that where an expert commits an error which is apparent on the
face of the record, a Writ Court can take corrective action.
14. The expert forgot that the question, in question, does not make a
reference to FR-56. The syllabus prescribed to the candidates only required
knowledge of FR-22, FR-24, FR-26 and FR-27. The syllabus prescribed
required knowledge of the Service Rules of BSNL. On the subject of
retirement on superannuation the language of Rule-55 of the BSNL Rules
was distinct from that of FR-56. The candidates were supposed to answer the
question not with reference to FR-56 but the applicable Service Rule of
BSNL. All this was ignored by the paper-setter i.e. the expert.
15. Regretfully, the Central Administrative Tribunal has not noted
aforesaid relevant facts. In fact, the impugned order does not make a mention
to the syllabus and the same excluding knowledge to be tested with reference
to FR-56.
16. The writ petition is allowed. Impugned order dated November
03, 2012 dismissing OA No.4388/2011 is set aside and the Original
Application filed by the writ petitioner stands disposed of directing
respondents to treat the answer to Question No.11 given by the petitioner as
correct and to award petitioner „2‟ marks. Merit list be re-drawn and
petitioner be promoted with reference to her seniority position in the merit
list. Petitioner would be entitled to all consequential benefits including
seniority as per merit position and notional pay fixation from back date when
she would have earned a promotion. Back wages are denied on the principle
of No work no pay.
17. Needful would be done within four weeks.
18. No costs.
PRADEEP NANDRAJOG, J.
VEENA BIRBAL, J.
FEBRUARY 05, 2013
dk
