The Chairman Cum Chief Managing ... vs Chandresh Kumar Tripathi And Ors
2014 Latest Caselaw 3848 Del

$~20
*    IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                         DECIDED ON: 21.08.2014

+                         W.P. (C) 2224/2014
                          C.M. No.4643/2014

       THE CHAIRMAN CUM CHIEF MANAGING DIRECTOR
       (CMD) AND ORS                             ..... Petitioners
                     Through: Mr. Ankur Mittal, Advocate.

                          versus

       CHANDRESH KUMAR TRIPATHI AND ORS
                                             ..... Respondents

Through: Ms. Rani Chabbra, Advocate.

CORAM:

HON'BLE MR. JUSTICE S. RAVINDRA BHAT HON'BLE MR. JUSTICE VIPIN SANGHI

S.RAVINDRA BHAT, J. (OPEN COURT)

1. The petitioner (hereafter referred to as 'BSNL') challenges an order of the Central Administrative Tribunal (hereafter referred to as 'CAT') dated 27.11.2013 passed in OA 3275/2012 preferred by the respondents (hereafter referred to as 'applicants').

2. Briefly, the facts are that the applicants are working as Telecom Office Assistants (TOA); they were recruited in the Department of Telecommunication, Central Government and their service conditions were governed by the Junior Accounts Officer (JAO), Telecom Wing Group 'C' 1977. In the wake of BSNL's corporatization in 2000, it

W.P. (C) 2224/2014 Page 1 notified the Recruitment Rules which governed the posts of JAO in 2001. The 1977 Rules envision a regime whereby the cadre of JAOs was to be filled through a qualifying test split into two parts. Upon qualifying in the first part or securing 60% marks in all the papers in the first part, the aspirant could then move to part-II of the test; they were afforded six attempts - under the 1977 Rules. Besides, the Rules also permitted a candidate not qualifying in all the papers (in part-I) but who had secured 60% in any one paper, the benefit of an exemption from appearing in that paper in three subsequent attempts, and upon qualifying in the other papers, to participate in the test in part-II.

3. The regime mandated by the BSNL Rules of 2001 envisioned different two part test process. The first part was a screening test, to be followed by a subjective type written test. The minimum threshold or qualifying marks in both the regimes was specified. In this case, the precise issue is the 40% qualifying marks required of candidates who had participated in the pre-existing or old Rules of 1977 after having duly qualified in part-I test.

4. The applicants had approached the Tribunal on an earlier occasion, complaining that the BSNL's refusal to grant them the benefit of grace marks - to enable them to qualify in certain paper or papers in the part-II test, was unjustified and arbitrary. In support of their submissions, the applicant had relied upon past instances - especially the part-II test of 2000, 2003 & 2007. The Tribunal had by its order dated 19.05.2010 in OA 972/2009 remitted the matter for fresh consideration by the authorities, i.e., BSNL, as to whether it was

W.P. (C) 2224/2014 Page 2 permissible to grant the requisite grace marks to the applicants, given the past practice. That order was affirmed by this Court on 28.12.2012 in W.P. (C) 8203/2010. After the remand, the BSNL once again considered the matter but rejected the request of the applicants which impelled them to approach the CAT yet again. This time they were successful.

5. By the impugned order, CAT found that the grace marks which the applicants had sought should be given to them and issued appropriate directions in that regard. In support of its conclusions, CAT principally was influenced by the past practice which the BSNL adopted; additionally, the applicants had argued that the BSNL's reason for refusal of grace marks, i.e., that the test was a competitive one rather than a qualifying one, was not borne out by the Rules.

6. Mr. Ankur Mittal, Advocate on behalf of the BSNL, urges that the CAT exceeded its jurisdiction in mandating that the applicants ought to be granted the grace marks. It was submitted that neither the 1977 Rules nor the BSNL's Rules of 2001, or even the governing Circulars or Notifications enable the authorities to relax the standards in the sense that grace marks can be granted to unreserved category candidates. In this regard, learned counsel relied upon the power of exemption available which is applicable only in respect of the reserved category (SC/ST) candidates, which reads as follows: -

"(a) Any candidate failing at a Departmental Examination but passing in any subject with at least 60% of the marks but where there is more than one paper in any subject, viz theory and practical with at least 40% of the marks in each paper and 60%

W.P. (C) 2224/2014 Page 3 of the marks in the aggregate of the two, will not be required to appear again in that subject at any of the three consecutive Departmental Examination if the candidate is otherwise eligible to appear at those subsequent Departmental Examinations.

(b) as regards the candidates who secured exemption in "Book- keeping" paper, but have not qualified in the Part I examination or a whole they will be required to appear afresh in the "Book- keeping" paper under the new syllabus.

(c) If a candidate has secured exemption in Papers III and IV (Service Rules) in Part I of the old syllabus he will also be deemed to have secured exemption in the papers on the Service Rules under the new syllabus as the syllabus is the same under the old and the new schemes.

(d) In Part I of the old syllabus there are two papers (Theory and Practical) on general Rules and procedures and two papers (Theory and Practical) on financial Rules and procedures. Under the new syllabus there will be only two papers (Theory and Practical) combining both General and Financial Rules and procedure, therefore the candidates who have accrued exemption either in the General Rules and Procedure or Financial Rules and Procedure will be required to appear in General and Financial Rules under the new syllabus. However if a candidate has secured exemption in both the subjects, 'General' and 'Financial Rules' then he will be deemed to"

7. It was next argued that the CAT should not have relied upon the so-called past practice to mandate something which was impermissible under the Rules or the governing norms. In support of these submissions, learned counsel relied upon the decision reported as Orissa Public Service Commission & Anr. v. Rupashree Chowdhary, (2011) 8 SCC 108 as well as the judgment of the Andhra Pradesh High Court in M. Jaya Rao v. Chairman-cum-Managing Director,

W.P. (C) 2224/2014 Page 4 W.P. (C) 6357/2006 decided on 3.9.2007. It was highlighted that the High Court had on that occasion stated that there is no right to claim award of grace marks.

8. Learned counsel for the respondents Mrs. Rani Chabbra argued that the CAT's order does not call for interference. It was submitted that the BSNL on past occasions had consistently followed the practice of awarding grace marks even to the extent of conferring 10 marks over and above the results in the previous instances. Counsel also relied upon the instructions dated 23.07.2002 which had clarified that up to 6 grace marks in any subjects are to be given in the part-II test held in 2000. It was submitted further that the denial of the applicants' reasonable request for award of grace marks was arbitrary in the circumstances of the case. Learned counsel emphasized that having granted similar benefit in the past, the BSNL cannot now urge that it lacks power and fall back upon the Rules. Learned counsel also relied upon the previous order of the CAT in OA 3275/2012 where, to a specific query put by the CAT, BSNL was unable to explain the circumstances under which the grace marks was awarded to candidates who appeared in all the previous tests. It was submitted that for these reasons, the direction to award grace marks was justified and ought not to be disturbed.

9. It is evident from the above discussion that the applicants are governed by the old regime, i.e., the 1977 Rules, for promotion to the post of JAO. Admittedly, they qualified in the part-I test and were afforded two opportunities to qualify in the part-II test. The part-II test comprises of four papers. The applicants did not get the requisite

W.P. (C) 2224/2014 Page 5 40% marks in aggregate. The stipulation in 1977 Rules is that candidates have to obtain 45% qualifying marks in aggregate, subject to minimum 40% in each of the four papers. They strongly relied upon the past practice adopted by BSNL in awarding grace marks to similar candidates who appeared in the part-II test.

10. As noticed above, the BSNL norms i.e. either 1977 Rules or the 2001 Rules do not provide for award of grace marks or exemption from obtaining the minimum qualifying marks, which in effect is a standard, constituting the pre-condition for promotion to the post of JAO. Only an exception is made in the case of SC/ST candidates - that rule has been extracted above. It is well settled that the enactment of an exception to a rule is to be confined within its four corners, and cannot be expanded beyond its purported operation. In other words, the rule or norm making authority was conscious about the need to grant exemption, including the necessity of awarding grace marks; yet that power was invoked only in the case of SC/ST candidates and excluded in respect of general category candidates. Such being the case and in the absence of any other general rules authorizing BSNL to lower the standards required for promotion through the written test, this Court is of the opinion that the direction by the CAT could not have been given in the manner that it did. Even if it were to be assumed for the sake of argument that the power of relaxation exists, its exercise could not be mandated by the Tribunal. It would have to be left to the discretion of the authority to decide whether, or not, to exercise such power of relaxation.

W.P. (C) 2224/2014 Page 6

11. We notice that the CAT had relied upon past instances to say that such power apparently existed and the BSNL could not argue about lack of power. In this regard, this Court is in agreement with the BSNL which relies upon the decision of the Supreme Court in Orissa Public Service Commission (supra) where it was held under similar circumstances that "There is no power provided in the statute/Rules permitting any such rounding off or giving grace marks so as to bring up a candidate to the minimum requirement. In our considered opinion, no such rounding off or relaxation was permissible. The Rules are statutory in nature and no dilution or amendment to such Rules is permissible or possible by adding some words to the said statutory rules for giving the benefit of rounding off or relaxation." Reliance upon the Andhra Pradesh High Court's decision is also, in our opinion, apt. For these reasons, it cannot be said that any past practice of granting grace marks - to whatever extent - shackles the BSNL into a stand which is plainly contrary to the norms and rules governing the promotions to the post of JAO. Likewise, we notice that the 2002 Circular, which was relied upon by the applicants, had a onetime application; moreover, that it enabled grant of 6 grace marks to general category candidates does not in any way authorize BSNL to act in a similar manner now, since no such power inheres or vests in it. The applicants could not, therefore, have claimed for a direction that the BSNL ought to have awarded grace marks since there is nothing which creates a vested right in that regard.

W.P. (C) 2224/2014 Page 7

12. For the above reasons, this Court is of the opinion that impugned order of the CAT is clearly an error of law and requires to be and is accordingly set aside.

13. The writ petition is, therefore, allowed and in the circumstances, there would be no order as to costs.

S. RAVINDRA BHAT (JUDGE)

VIPIN SANGHI (JUDGE) AUGUST 21, 2014 /vks/

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