Delhi High Court
Pramod Kumar vs Union Of India & Anr. on 6 February, 2015
Author: Pradeep Nandrajog
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Decision : February 06, 2015
+ W.P.(C) 2275/2012
PRAMOD KUMAR ..... Petitioner
Represented by: Mr.D.K.Sharma, Advocate
versus
UNION OF INDIA & ANR ..... Respondents
Represented by: Mr.Rajan Sabharwal, Advocate with
Mr.Raghav Sabharwal, Advocate
CORAM:
HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
HON'BLE MS. JUSTICE PRATIBHA RANI
PRADEEP NANDRAJOG, J.
1. The Ministry of Railways issued an advertisement, published in the
Employment News 14-20 November, 2009 inviting applications for
appointment by direct recruitment to the post of Inspector (Prosecution) and
Sub-Inspector (Prosecution). Of the 58 vacancies notified for the post of
Inspector (Prosecution), 6 were shown as reserved for ex-servicemen. Of
the 7 vacancies notified for the post of Sub-Inspector (Prosecution), 1 was
shown as reserved for ex-servicemen.
2. The only concession shown towards ex-servicemen in the
advertisement was the relaxation in age as per orders issued by the
Government of India from time to time. It was indicated in the
advertisement that the eligible candidates would be subjected to a written
test of 180 marks followed by a viva-voce having 20 marks. The petitioner
took the written test and duly appeared in the viva-voce.
3. As per standing order No.89, dated June 12, 2009, 60% was the
specified qualifying marks for all candidates other than those belonging to
the Scheduled Castes and Scheduled Tribes; for whom the qualifying marks
prescribed was 50%.
4. When the results were declared, name of no ex-servicemen appeared
in the select list.
5. The grievance of the writ petitioner, though not specifically pleaded
in the writ petition, is that the qualifying marks : 60% prescribed for general
category candidates could not be treated as the benchmark for qualifying
marks for ex-servicemen and for which reliance has been placed upon the
decision of the Supreme Court reported as 1994 Supp (2) SCC 55 State of
Orissa Vs. Mohd. Yunus & Ors. in which decision the Supreme Court had
observed, in paragraph 3, as under:-
"3. The only question that arises for consideration in this
appeal is whether the respondent could be treated on a par with
members of the Scheduled Castes and Scheduled Tribes for
lowering the standard for selection by the Public Service
Commission. The tribunal following the judgment of the Full
Bench of Punjab and Haryana High Court in the case of AIR
1977 P&H 56 Jagdish Rai Vs. State of Haryana directed that
the respondent is entitled to the same benefits. We are unable to
agree with the tribunal and the ratio in the Full Bench
judgment. The members of the SCs and STs have been given
benefit by operation of Article 16(4) of the Constitution. Any
concession or relaxation in their favour is in compliance of the
constitutional mandate to provide adequate representation of
them in any service or posts under the State. Any other category
other than SCs and STs cannot be put on a par with them in the
matters of relaxation of the conditions for recruitment or other
conditions. It is stated by Mr Mehta, learned counsel for the
State that the Commission has put a minimum of 780 marks as
qualifying marks for the general candidates. The respondent
admittedly belongs to the general category. Though three posts
have been reserved for ex-servicemen, if a candidate who
belongs to ex-servicemen gets eligibility by securing 780
minimum marks, irrespective of the fact whether he/they comes
by general selection or not, by virtue of reservation made to the
ex-servicemen, he/they become eligible for consideration. This
relaxation has been made in contradistinction with other
general candidates but for which the respondent would be
ineligible. The fixation of the general standard marks
prescribed for the general candidates would undoubtedly be a
handicap to the ex-service personnel who are made to compete
with youngsters after several years of service put in the defence
service. The State Government and the Public Service
Commission are directed to consider the desirability to fix a
lesser standard than that of the general candidates as ex-
servicemen have served the nation in its defence and in the
process they may not come on a par with the general
candidates. Therefore, some relaxation in their behalf would be
necessary to meet the exigencies of coping up with the
reservation given to them. Otherwise, reservation would be
illusory. The State Government in consultation with the Public
Service Commission would decide this issue within a period of
three months from the date of the receipt of this order and
thereafter consider the case of the respondent accordingly."
6. A perusal of the aforesaid paragraph 3 of the decision in
Mohd.Yunus's case (supra) reveals that the Supreme Court recognized the
constitutional mandate of providing adequate representation in service of
posts under the State to members of the Scheduled Castes and Scheduled
Tribes and thus it being permissible for the State to accord concession or
relaxation in favour of members of the Scheduled Castes and Scheduled
Tribes. The Supreme Court categorically opined that for service or posts
under the State, ex-servicemen cannot claim parity with members of the
Scheduled Castes and Scheduled Tribes, but recognized that the fixation of
general standard marks prescribed for general candidates would undoubtedly
be a handicap to the ex-service personnel who are made to compete with
youngsters after several years of service put in the defence service. The
State Governments and the Public Service Commissions were directed to
consider the desirability to fix a lesser standard than that of the general
candidates whenever posts were reserved for ex-servicemen.
7. In the absence of a decision taken by the Railway Authorities to
prescribe a lower qualifying percentage for ex-servicemen for the
recruitment in question, it would be difficult to grant any relief to the
petitioner. The petitioner secured 103.25 marks out of 180 marks and 8.25
marks out of 20 marks in the written and the viva-voce respectively. Thus
he secured 55.75% marks. He was therefore not found to be attaining the
mandatory 60% marks and hence was not empanelled for selection as either
an Inspector (Prosecution) or a Sub-Inspector (Prosecution).
8. Another argument was advanced by learned counsel for the petitioner,
and in respect of which there are no pleadings in the writ petition. The
argument was premised on the Ex-servicemen (Re-employment in Central
Civil Services and Posts) Rules, 1979. Rule 6A introduced on March 01,
1986 was relied upon. The Rule reads as under:-
"In the case of direct recruitment, if sufficient number of
candidates belonging to the ex-servicemen are not available on
the basis of general standard to fill all the vacancies reserved
for them, candidates belonging to the category of ex-servicemen
may be selected under a relaxed standard of selection to make
up the deficiency in the reserved quota subject to the condition
that such relaxation will not affect the level of performance by
such candidates."
9. The Rule is directory and not mandatory in nature and permits the
lowering of a standard for selection for ex-servicemen subject to the
condition that such relaxation will not affect the level of performance by ex-
servicemen. No relief can be granted to the petitioner with reference to the
said Rule on account of there being no pleadings in the writ petition with
reference to the Rule in question. Had there been pleadings to said effect in
the writ petition, the respondent would have had an opportunity to deal with
the situation contemplated by the Rule and make pleadings in rebuttal
regarding a level of performance expected to be maintained by ex-
servicemen in the prosecution department of the Indian Railway.
10. The writ petition is dismissed but without any order as to costs.
(PRADEEP NANDRAJOG)
JUDGE
(PRATIBHA RANI)
JUDGE
FEBRUARY 06, 2015
mamta
