S S Dogra vs Secretary I C A R New Delhi And Anr
2016 Latest Caselaw 6322 Del

$~3.
*       IN THE HIGH COURT OF DELHI AT NEW DELHI
+                WRIT PETITION (CIVIL) NO. 7224/2016
                                         Date of decision: 30th September, 2016
        S S DOGRA                                              ..... Petitioner
                               Through Mr. Srigopal Aggarwal, Advocate.

                               versus

        SECRETARY I C A R NEW DELHI AND ANR. .... Respondents
                      Through Mr.Gagan Mathur, Advocate for Mr.
                      S.R. Mathur, Advocate.

        CORAM:
        HON'BLE MR. JUSTICE SANJIV KHANNA
        HON'BLE MS. JUSTICE SUNITA GUPTA

SANJIV KHANNA, J. (ORAL):

        The petitioner-S.S. Dogra in the present writ petition, prays for

setting aside of the order dated 3.09.2015 passed by the Central

Administrative Tribunal, Principal Bench, New Delhi (Tribunal for short),

whereby OA No. 3325/2014 preferred by the petitioner and one Mr. H.K.

Joshi has been dismissed. The petitioner submits that due to financial

constraints, Mr. H.K. Joshi has shown an unwillingness to contest the

decision and the present writ petition has only been filed by S.S. Dogra.

2.      By      notice   No.    2(1)/2012-Exam-II/B    dated   3.05.2013,      the

Agricultural Scientists Recruitment Board (ASRB, for short) had invited

applications from interested persons, who were eligible to appear in the

Limited Departmental Competitive Examination (LDCE-2013) for the post

W.P. (C) No. 7224/2016                                                  Page 1 of 4
 of Assistants. petitioner had participated in the said examination held on

29.08.2013 and 30.08.2013. He was declared unsuccessful, having not

secured pass marks of 45%, applicable to general category candidates.

3.      The contention of the petitioner is that in the earlier exams, the pass

or qualifying marks were 40% for the unreserved category and 30% for

the reserved category candidates. Even in the examination conducted on

29.09.2014, the qualifying marks were reduced to 40% for the unreserved

category. The increase in the qualifying marks for the examinations held

in 2013 is per se discriminatory and invalid. It offends the Right to

Equality under Article 14.

4.      The petitioner submits that as per the copy of file notings under the

Right to Information Act, 2005, the pass marks of 45% for unreserved

category and 40% for Scheduled Casts and Scheduled Tribes were fixed

and approved by the Chairman on 26.09.2013. The examination, it is

stated, was held on 29.08.2013 and 30.08.2013. It is accordingly urged that

the prescription of higher qualifying marks in comparison to the earlier

years would amount to a change in the "rules of the game" after the

commencement of the "game" and the same is impermissible.

5.      The Recruitment Rules have been placed on record. As per the

appendix to the Rules, the ASRB has the discretion to fix qualifying marks

in any or all subjects of the examination. This position is undisputed and

accepted. Reference can be made to Paragraph 6 of the appendix which

W.P. (C) No. 7224/2016                                                Page 2 of 4
 reads:-

                 "6. The ASRB will have the discretion to fix qualifying
                 marks in any or all of the subjects of the examination."

6.      In the present case, the petitioner had participated in the examination

conducted by the ASRB in terms of the aforesaid stipulation. Qualifying

marks were not fixed in the Appendix and as per the Rule, the same were

to fixed by the ASRB. No doubt, the examination was held on 29.08.2013

and 30.08.2013., but this does not mean that the ASRB could not have

fixed the pass or qualifying marks after the date of examination. The "rules

of the game" did not undergo a change. The candidates were informed that

they had to qualify the examination in order to be eligible for promotion.

7.      The quantum of qualifying/pass marks, as prescribed in the past,

would only be an indicator and would not confer a vested right on the

petitioner or impose an obligation on the respondent to fix the same

qualifying marks, particularly in view of the express Rule which empowers

the ASRB to fix the qualifying marks in any or all subjects of the

examination. Fixing of the percentage of qualifying marks, be it at 40% or

45%, would falls within the administrative or policy domain. The

determination of the qualifying marks is a matter of discretion, which when

fixed and not absurd or perverse, cannot be struck down solely on the

premise that it would have been appropriate to fix the qualifying marks at

40%, in view of the past precedents.


W.P. (C) No. 7224/2016                                                 Page 3 of 4
 8.      The qualifying marks had not been stipulated and were to be fixed

by the ASRB under the Rule. The respondents could have altered or

increased the percentage of qualifying marks and the same would not

amount to discrimination against candidates who has appeared in the

examination in 2013. A case for discrimination is not made out solely on

the ground that in the earlier examinations, the ASRB had fixed the pass

marks at 40%. Each examination is separate and distinct.

9.      All the candidates, who had appeared in the 2013 examination, were

tested on the same criteria. The attempt was to raise the standard and select

candidates who had faired well and secured the requisite marks as

prescribed. Possibly, the protests and objections raised by the candidates

have compelled the authorities to reduce the qualifying marks once again

and fix them at 40% for unreserved candidates. The earlier increase in the

percentage of qualifying marks for the examinations held in 2013 cannot

be struck down for this reason.

10.     In view of the above, the writ petition is dismissed.



                                               SANJIV KHANNA, J.

SUNITA GUPTA, J. SEPTEMBER 30, 2016 VKR