Delhi High Court
Neelam Kumari vs Gnctd & Anr on 17 May, 2016
$~21
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) 1884/2016 & CM No.8035/2016
Decided on : 17th May, 2016
NEELAM KUMARI ..... Petitioner
Through: Ms. Jyoti Singh, Senior Advocate
with Mr. Aman Mudgal,
Mr. Amandeep Joshi & Mr. Shameer
Sharma, Advocates
versus
GNCTD & ANR ..... Respondents
Through: Mr. Vikas Shokeen, Advocate
CORAM:
HON'BLE MR. JUSTICE SANJIV KHANNA
HON'BLE MR. JUSTICE NAJMI WAZIRI
SANJIV KHANNA, J. (ORAL)
1. Neelam Kumari, the petitioner in this writ petition, impugns the order
dated 25th January, 2016 passed in CP No.295/2015. The contention of the
petitioner is that the impugned order negates and rewrites the order of the
Principal Bench of the Central Administrative Tribunal dated 20th May,
2014 in O.A No. 510/2013
2. The petitioner had applied for the post of PGT (Hindi) advertised by
the Delhi Subordinate Services Selection Board. The last date for
submission of the application was 30.7.2010 and one of the essential
qualifications as stipulated and required by the recruitment rules was
Masters Degree or equivalent Oriental degree in the concerned subject from
a recognised university.
3. The petitioner had filed marksheet dated 25th September, 2009 issued
by the University of Kurukshetra for M.A.(Final) Examination in Hindi. The
said marksheet was issued prior to the last date of receipt of the application,
i.e., 30th July, 2010.
4. The petitioner to improve her grade had reappeared in some papers,
for which examination was conducted by the Kurukshetra University in the
years 2010 and 2011. This was permissible and allowed by the University.
Consequently, the University of Kurukshetra had issued a second marksheet
dated 19th May, 2012. This re-appearance, was not on account of the fact
that the petitioner had not cleared and qualified MA (Final) Examination,
but to improve and better her earlier score.
5. The controversy arose when the first marksheet dated 25th September,
2009 was rejected by the respondents as meeting the eligibility requirement
M.A. (Hindi). Their stand was that the second mark-sheet dated 19th May,
2012 was relevant and the same was issued after the last date for receipt of
application, 30th July, 2010. Thus, she was not eligible on 30th July, 2010.
6. The Tribunal vide order dated 20th May, 2014 in O.A. No. 513/2013
after considering the factual matrix and the position in law came to the
conclusion that the first marksheet, if genuine, was the valid mark-sheet and
would determine whether the petitioner was eligible. As the petitioner had
merely re-appeared in some papers to improve her grade/score, the second
marksheet would not determine her eligibility. The Tribunal noted that as
per information provided by the University of Kurukshetra, the student
could voluntarily repeat paper/re-appear in papers to improve their grade
within five years, after having passed the Final Examination in M.A.
(Hindi). For the said reasoning, while allowing the OA, directions were
issued to the respondents to verify the authenticity of the pass provisional
slip issued by the University of Kurukshetra.
7. In order to appreciate the final directions and what was directed by the
Tribunal vide order dated 20th May, 2014 in O.A. No. 513/2013, we would
like to reproduce relevant paragraphs which reads as under:
"9. We have carefully considered the submissions made by the
learned counsels and gone through the documents submitted by
both the sides. At the outset we would refer to the
objection raised by the learned counsel for respondents
that the documents that have not been signed by the
Registrar of the University should not be taken on record. It is
observed that the documents that have been reproduced in this
order have been signed by not only Dealing Official but
authenticated by Superintendent-I (R-III) and Assistant Registrar
(R-III) in the first document, Superintendent (Examination-III) in
the second document and Public Information Officer cum Assistant
Registrar (E-III) of Kurukshetra University in the third document.
We do not find any reason to accept the argument that these
officers are not authorized officers of the University to sign
these documents.
10. The issues that need to be addressed are:
(i) whether a candidate who secured pass marks in the
examination in 2009 but appeared in the improvement
examination in 2010-2011 before getting the formal 'degree'
can be considered to have passed MA (Final) for the purposes of
meeting the essential qualification
(ii) whether the respondent can reject a candidate whose marksheet
apparently carries pass marks but does not mention the word 'pass'
or the 'total' marks.
11. On the question that a candidate will be treate d as
having Post Graduation degree only after the University
formally gives a degree, we are of the view that once a
candidate has secured pass marks in the examination he can be
treated as possessing the prescribed qualification. It is the
proposition of the learned counsel for respondents that if the
candidate opts for improvement, the process of passing MA and
obtaining the degree of MA will conclude only when the person
has cleared all the improvement examinations taken by him. In this
connection, we refer to the information provided by Public
Information Officer of Kurukshetra University dated
27.05.2013 reproduced above, where in reply to the first question, it
has been stated that "a candidate can appear for improvement
j
of papers within 5 years after the MA (Hindi) (F) exam
passed". If we go by the proposition of learned counsel
for respondents, a candidate who has passed an
examination but dissatisfied with the marks opts for
improvement, will remain ineligible for any job for next 5-6
years till he gets the final marks and the degree. Such an
interpretation is neither logical nor fair to the candidates who
are taking improvement examinations to further improve their
career prospects and not to block even the available career
prospects for the next 5 years or more. We, therefore, are not
inclined to accept this interpretation and are of the view that by
opting to appear in improvement examinations, a candidate is
not dispossessed of the pass marks obtained in the earlier
examination.
12.In Rakesh Kumar Sharma vs. Government of NCT of Delhi &
Ors., Civil Appeal No.6116/2013 Hon'ble Supreme Court has
observed thus:
"16. In the instant case, the appellant did not possess the
requisite qualification on the last date of submission of the
application though he applied representing that he possessed
the same. The letter of offer of appointment was issue-1 to him
which was provisional and conditional subject to the
verification of educational qualification ) i.e., eligibility,
character verification etc. Clause 11 of the letter of offer of
appointment dated 23.2.2009 made it clear that in case
character is not certified or he did not possess the
qualification, the services will be terminated. The legal
proposition that emerges from the settled position of law as
enumerated above is that the result of the examination does
not relate back to the date of examination. A person would .
possess qualification only on the date of declaration of the
result. Thus, in view of the above, no exception can be taken to
the judgment of the High Court."
(emphasis supplied)
13. With that being the settled position of law, the applicant in this
case would possess the qualification on the date her MA (Final)
result was declared, which is 25.09.2009."
8. The Tribunal had thereafter issued the following directions:
"17. In view of the foregoing discussions and
reasons given, we allow this OA and direct the
respondents to consider the candidature of the
applicant as having passed MA (Final) Hindi
prior to the 1ast date of submission of the
application form after satisfying themselves about
the authenticity of the Pass Provisional Slip issued
by Kurukshetra University, Kurukshetra. No order
as to costs."
9. The aforesaid direction merely required the respondents to
ascertain and verify whether the marksheet dated 25 th September,
2009, was authentic and genuine. In case it was a genuine
marksheet, the case of the petitioner for appointment was to be
processed.
10. The respondents thereafter entered into correspondence with
the University of Kurukshetra and had received the reply dated 4 th
March, 2015 from the said University, which reads:
"With reference to your letter no. F-3(52) CC-iii/Res/PGT
Hindi/2012-2013/526 dated 14/01/2015 and in continuation to this
office letter no. 276 dated 19/8/2014 in which you were informed
that Ms. Neelam Kumari D/o Poop Chand appeared in M.A. Hindi
Examination in May 2009 Under Roll No. 877947 and her result
was declared Pass Provisional.
It is further informed as per report of Result Branch that Ms.
Neelam kumari D/o Chand Roop appeared for Improvement
Examination of MA Hindi (Final) in May 2011 under Ro11 No.
1422430 bearing DMC Sr. no.5768 was issued and her earlier
result for M.A. Hindi Final Examination under Roll No. 5768 was
issued and her earlier result for M.A. Hindi Final Examination
Under Roll No.877947 bearing DMC Sr. No.72536 was got
cancelled.
This is for your information."
11. Thus the University of Kurukshetra has accepted that the
petitioner had appeared in Hindi Examination in May 2009 under
Roll number 877947 and was declared provisionally pass. The
second paragraph states that the petitioner had appeared in the
improvement examination in May, 2011 with a new Roll No.877947
and the result in the re-appeared examination was declared. In view
of the new marks, the earlier result was declared cancelled. The
reason is obvious, because the new marks secured in the
improvement examination would be counted. However, this would
not nullify the fact that the petitioner had already cleared the M.A.
(Hindi) Examination from the University of Kurukshetra in 2009. In
any case, the respondents could not have raised this issue, for these
aspects were considered and examined by the Tribunal in their order
dated 20 th May, 2014. The contention of the petitioner was accepted,
and the stance and stand of the respondent was rejected. The only
controversy and limited issue left to be examined by the respondents
was whether the marksheet dated 25 th September, 2009 was genuine
and authentic. Verification to this extent was required . It is obvious
that as per the University of Kurukshetra, the marksheet dated 25 th
September, 2009 was genuine and correct marksheet.
12. As the respondents had failed to comply with the said
directions, the petitioner had filed CP No.295/2015. The impugned
order dated 25 th January, 2016 passed in the CP takes notice of the
factual controversy and records that the petitioner had appeared in
M.A.(Hindi) Final Examination in 2009, and the marksheet was
issued on 25 th September, 2009. It further records that the petitioner
was not satisfied with the marks obtained and had, therefore,
appeared in the improvement/betterment examination in May, 2010
and May, 2011. The petitioner had improved her grades by securing
2 nd division in the improvement examination and accordingly,
another degree was issued on 30 th June, 2012. After having reached
the said conclusion, the Tribunal in the impugned order has held as
under:
"8. The learned counsel for the petitioner contends that once
this Tribunal held that the petitioner would possess the
qualification on the date her MA final result was declared on
25.09.2009, which satisfies the requirement of the notification,
i.e., possessing the essential qualification before the cut off
date of 30.07.2010, the respondents cannot reject the
candidature of the petitioner on any other ground. On the other
hand the learned counsel for the respondents submits that this
Tribunal while allowing the OA directed the respondents to
satisfy themselves about the authenticity of the pass provisional
slip issued by Kurukshetra University, Kurukshetra, i.e., the
Marks Sheet of MA (Hindi) [Final] examination dated
25.09.2009, and in pursuance of the same- only they have
sought for information from the said University and since the
information of the University is that the petitioner passed the
MA (Hindi) [Final] in May, 2011 and obtained her Degree in
May, 2011 and her earlier results of the MA (Hindi) [Final]
examination was cancelled, and accordingly, since the
petitioner did not possess the requisite eligibility criteria on the
declared cut off date i.e.., 30.07.2010, her claim was rejected.
Therefore, the learned counsel submits that the respondents
have fully complied with the orders of this Tribunal and that
there is no wilful or deliberate violation of the orders of this
Tribunal.
9. This Tribunal while allowing the OA proceeded on the
basis of the Marks sheet issued to the petitioner in MA
(Hindi)[Final] examination dated 25.09.2009 is valid and in
force and also directed the respondents to satisfy themselves
about the authenticity of the same, while considering the
candidature of the petitioner and when the respondents
rejected the claim of the petitioner as the said Marks Sheet
dated 25.09.2009 itself was cancelled by the University, we do
not find any contumacious act on the part of the respondents."
13. We do not think that the aforesaid reasoning can be sustained
as it amounts to rewriting or overwriting the earlier order dated 20 th
May, 2015 passed in OA No.510/2013. In the contempt proceedings,
limited controversy and issue had arisen in terms of the directions
issued in paragraph 17 of the order dated 20 th May, 2014. The
Tribunal unfortunately went into other aspects and considerations.
Preferring a literal interpretation of the word 'cancelled', it was
held that the marksheet dated 25 th September, 2009, once cancelled,
will mean that the said marks do not exist. We do not agree that the
marksheet dated 25 th September, 2009 was "cancelled" because of
the result in the improvement or betterment examination. The word
'cancelled' can mean different things in different situations and has
to be interpreted keeping in view the factual matrix and issue raised.
Sometimes, literal interpretation can do injustice and lead to
absurdities. In the present case, the petitioner had obviously passed
M.A. (Hindi) in 2009.The improvement examination would not undo
or cancel the said degree, or have the effect as suggested and
understood by the Tribunal in the impugned order dated 25 th
January, 2016. The word 'cancelled' used/indicated by the
University of Kurukshetra is to the effect that instead of the earlier
marks, the marks secured in the improvement or betterment
examination will now be taken into account for grading. The
situation would have been different in case the eligibility norms had
stipulated that the candidate should have secured at least a 2 nd
division or 50% marks for the candidate to be eligible for
consideration. The petitioner would have been then eligible for
consideration only after the marksheet dated 30 th June, 2012 was
issued. It is not in dispute that the petitioner satisfied the minimum
eligibility qualification as per the grading or marks scored in the marksheet
dated 25th September, 2009. The petitioner is not relying on the marks scored
by her as mentioned in the second marksheet dated 19th May, 2012.
15. In view of the aforesaid position, we would allow the present
writ petition and set aside the impugned order dated 25 th January,
2016. The matter is restored to the Tribunal for appropriate orders
and direction. We hope and trust that the respondents will proceed
to process the case of the petitioner for appointment to the post of
PGT (Hindi) in accordance with law. In case there is any lapse, the
Tribunal would ensure that necessary compliance is made. To cut
short the delay, the parties are directed to appear before the
Tribunal on 26 th August, 2016. We are giving a long date, as we
want to give sufficient time to the respondents for compliance.
16. The petition stands disposed of in the above terms. CM
No.8035/2016 also stands disposed of.
SANJIV KHANNA, J.
NAJMI WAZIRI, J.
MAY 17, 2016
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