Neeraj Yadav vs Airports Authority Of India
2019 Latest Caselaw 2060 Del

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*      IN THE HIGH COURT OF DELHI AT NEW DELHI

                                            Reserved on:       03.04.2019
                                            Pronounced on:     16.04.2019

+      W.P.(C) 4396/2017 and CM APPL. 22729/2018
       NEERAJ YADAV                                          ..... Petitioner
                           Through          Ms. Pooja Dhar, Adv.

                           versus

       AIRPORTS AUTHORITY OF INDIA             ..... Respondent
                    Through  Mr. Dig Vijay Rai and Mr. Kustubh
                             Singh Advs.

       CORAM:
       HON'BLE MR. JUSTICE SURESH KUMAR KAIT

                               JUDGMENT

1. Vide the present petition, the petitioner seeks direction declaring that

the exclusion of the petitioner from the select list of recruitment for the post

of Junior Assistant (Fire Service) held by respondent pursuant to

Advertisement No.02/2016, is arbitrary, unlawful and violates the

fundamental rights of the petitioner under Article 14, 19(1)(g) and 21 of the

Constitution of India. Consequently, commanding the respondent to include

the petitioner‟s name in the select list.

2. The brief facts of the case are that in August 2016, the Respondent

issued Advertisement No. 02/2016 for recruitment to the post of Junior

Assistant (Fire Service). 59 vacancies were advertised for general

candidates, 12 for Scheduled Castes, 16 for Scheduled Tribes and 19 for

OBC‟s (total 105 vacancies). As per the advertisement, the applicants

would have to first appear for online exam, followed by physical

measurement, and subject to passing these two, appear for driving test and

then if successful in driving test, appear for physical endurance test. The

educational qualifications as provided in the advertisement are as below:

"a) 10th Pass + 3 years approved regular Diploma in Mechanical/Automobile/Fire with minimum 50% marks, OR

b) 12th Pass (Regular Study) with 50% marks"

3. The petitioner qualifies under the second part of the educational

qualifications prescribed, i.e. 12th Pass (Regular Study) with 50% marks.

The petitioner has passed 10+2 Board exam conducted by the CBSE in the

year 2011, with subjects of English, Economics, Business Studies,

Accountancy, Physical Education and Mathematics. The marks statement

issued by the Central Board of School Education for the Senior School

Certificate Examination 2011 dated 23.05.2011, is Annexure P-2.

4. Further case of the petitioner is that as per the regulations to pass the

exam a candidate must pass in five subjects of external examination which

can be either two languages and three electives or one language and four

electives as per the scheme of studies. Thus, the petitioner who was marked

on six subjects could choose one language and four electives. The marks

awarded to the petitioner in six subjects as per the marks statement is

tabulated below -

                SL.NO.    SUBJECT                    MARKS


                3.        Physical Education         63

5. As per above table, excluding Mathematics, the total marks secured

by the Petitioner in the first five subjects is 269(Two Hundred and Sixty

Nine) and if divided by five, the percentage is 53.8% (Fifty Three point

Eight percent). Hence, the Petitioner qualified as per the Advertisement.

6. Accordingly, the petitioner being fully eligible as per the terms and

conditions specified in the advertisement, he applied in the OBC category

and was allotted Roll No. 1002111062. He participated in the online exam

conducted by the respondent on 15.10.2016. Thereafter, on 30.12.2016 the

respondent notified that the petitioner was provisionally successful in the

online exam and was invited for certificate verification, physical

measurement test, driving test and physical endurance test to be held on

21.01.2017. Accordingly, the petitioner reported on 21.01.2017, however,

to the petitioner‟s shock, he was disqualified by the officials of the

respondent by saying that his marks were less than 50%. The petitioner

showed his mark sheet and tried to explain that he in fact had more than

50% marks and further explained them that they were wrongly taking into

account all six subjects (due to which they erroneously calculated the overall

percentage as 47.83%). However, no heed was paid to him and the petitioner

was disqualified by the respondent. Being aggrieved, the petitioner

addressed a representation to the respondent on 23.01.2017 explaining the

correct position, but did not get any reply. Finally, the select list was

published in which the petitioner‟s name was not there. Only 36 names were

mentioned in the select list as against the total 105 vacancies advertised.

7. Learned counsel appearing on behalf of the petitioner submits that

having no option, the petitioner moved an application under the Right to

Information Act on 06.04.2017 asking the respondent about the reason for

not including his name in the select list. In reply dated 17.04.2017 vide a

covering letter dated 21.04.2017, reasons for rejection was stated as "Less

than 50% marks in Class 12th"

8. Counsel for the petitioner further submitted that the very mark sheet

of the petitioner discloses that he has secured more than 50% and the

respondent has erroneously calculated the marks less than 50%. The

respondent has incorrectly calculated the petitioner‟s percentage by taking

into account all six subjects, instead of excluding mathematics which was an

additional subject and counting the remaining five subjects. Taking the

correct method of calculation into account, the petitioner has secured 53.8%,

which is well-above the minimum qualification provided in the

advertisement. In these circumstances, clearly, the rejection of the petitioner

suffers from the voice of Wednesbury unreasonableness and is not

sustainable either in law or in the facts of the case.

9. Counsel for the petitioner has pointed out that the respondent has

selected only 36 persons as against 105 vacancies advertised, hence, there is

sufficient space to accommodate the petitioner in the post in question.

10. To strengthen his argument, learned counsel for the petitioner submits

that a similar issue came before the Hon‟ble Supreme Court in case of

Kusum Lata vs. State of Haryana & Ors.: (2002) 6 SCC 343 whereby held

as under:

"8. As per the scheme of examination of CBSE the marks obtained in the additional subjects are not taken into

consideration in the passing of the examination. The additional subject is optional. A candidate may take it or not. The requirement is that a candidate should obtain 33% marks or Grade D-2 in each of the five subjects of external examination as per the scheme of the studies. When the eligibility clause stipulates that a candidate should have passed 10+2 examination with at least 50% aggregate marks, it is implicit that the aggregate marks are required to be calculated keeping in view only the subjects which are necessary to pass 10+2 examination and not the marks of the additional subject which is not taken into account for passing the examination. This is the only reasonable interpretation having regard to the spirit of the clause providing for eligibility conditions. The relevant factor is to see what is necessary to pass 10+2 examination conducted by CBSE and on that basis decide whether a candidate fulfils or not the requirement of the eligibility clause. If seen from this perspective, the aggregate marks would have to be worked out having regard to the marks obtained in five subjects and not in the additional subject which is not taken into account for passing the examination."

11. On the other hand, learned counsel appearing on behalf of the

respondent submits that a selection committee was constituted by the

competent authority vide office order dated 04.01.2017 to conduct the skill

test for 154 qualified candidates including the petitioner and the skill test

was held in four batches from 18.01.2017 to 21.01.2017 in the following

four steps:

"Step 1: Certificate Verification Step 2: Physical Measurement Test Step 3: Driving Test

Step 4: Physical Endurance Test"

12. Accordingly, the petitioner was called to appear for the skill test vide

letter dated 30.12.2016 on 21.01.2017 in the fourth batch. As per the

selection process, the petitioner was required to clear all the four steps

mentioned above before the Selection Committee for final selection. As per

records, the petitioner was disqualified by the Selection Committee in the

First Step i.e. Certificate Verification as he was not meeting the criteria of

50% in 12th class and hence was not allowed to enter into the next

subsequent steps for selection. The petitioner in the 12th class had secured

287 marks out of 600 and hence was not meeting the educational

qualification criteria.

13. He further submitted that the case of the petitioner is that he qualified

the 12th Board exam conducted by CBSE in the year 2011 with subjects

English, Economics, Business Studies, Accountancy, Physical Education

and Mathematics. As per the Regulations of the CBSE, to pass the

examination, a candidate must pass in five subjects of External examination

which can be either two languages and three electives or one language and

four electives as per the scheme of studies and hence the petitioner who was

marked on six subjects could chose one language and four electives. The

petitioner further claimed that taking the above formula and exclude

mathematics and add two languages and three electives viz. Business

Studies, Physical Education and Accountancy, the total marks secured by

the petitioner in the first five subjects 269 i.e. 53.8% and hence the

petitioner was qualified as per the advertisement.

14. Learned counsel submitted that the said formula of CBSE is only for

passing of the exam of 12th class and not for other purposes i.e. recruitment.

In case of Shri Vishal Chaudhary who was selected, had appeared in six

subjects in his 12th class CBSE, his total marks were considered to determine

his percentage. Similar was the case of Shri Shakti Singh, Shri Nitesh, Shri

Vikrant Tomar (U.P. Board) and Shri Sonu Kumar Bharati.

15. Learned counsel further submitted that the respondent has uniformly

calculated the percentage of the candidates in their 12th class to determine as

to whether the candidates have secured 50% marks in their 12 th class exams

irrespective of the fact whether they appeared in five subjects or six subjects.

There has been no discrimination qua the petitioner, therefore, the present

petition deserves dismissal.

16. It is not in dispute that as per the advertisement, the educational

qualification required for the post in question is 12th pass (Regular service)

with 50%. As per the guidelines 3(a) of the CBSE which is at page 15 of the

paper book is as under:

"(a) To pass the examination, a candidate must obtain atleast Grade D-2 in all subjects of internal assessment unless the candidate is exempted and 33% marks or Grade D-2 in each of the five subjects of external examination."

17.The marks awarded to the petitioner in six subjects as per the marks

statement is tabulated below:

                    S.No.     Subject                  Marks


                    3.        Physical Education       63
                    4.        Business Studies         40

18. As per the Regulations of the CBSE, to pass the examination, a

candidate must pass in five subjects of External examination which can be

either two languages and three electives or one language and four electives

as per the scheme of studies. If we take the above formula and exclude

mathematics and add one language and four electives viz. Economics,

Business Studies, Physical Education and Accountancy, the total marks

secured by the petitioner in the first five subjects 269 and if divide by 5, the

percentage is 53.8%. Hence, the petitioner is qualified as per the

advertisement. The mark sheet clearly says "pass" which further

collaborates that only marks for five subjects were required to be calculated

which can be either two languages and three electives or one language and

four electives as per the scheme of studies.

19. In addition to above, as per Annexure D which is at page 126 of the

paper book, the mathematics is shown as additional subject wherein marks

obtained is 18 with Grade „E‟ and declared „Fail‟. Thus in any sense, the

mathematics which is additional subject cannot be considered as the main

subject of the petitioner.

20. A similar issue came in the case of Kusum Lata (supra) as cited by

the petitioner wherein it is held that as per the scheme of examination of

CBSE, the marks obtained in the additional subjects are not to be taken into

consideration in passing of the examination. The additional subject is

optional. A candidate may take it or not. The requirement is that a candidate

should obtain 33% marks or Grade D-2 in each of the five subjects of

external examination as per the scheme of the studies. When the eligibility

clause stipulates that a candidate should have passed 10+2 examination with

at least 50% aggregate marks, it is implicit that the aggregate marks are

required to be calculated keeping in view only the subjects which are

necessary to pass 10+2 examination and not the marks of the additional

subject which is not taken into account for passing the examination.

21. Accordingly, I hereby declare that the aggregate of the petitioner in

the class 12th is more than 50% by excluding the mathematics being

additional subject which is evident from Annexure D at page 126 of the

paper book.

22. It is not in dispute that the total vacancies were 105 and only 36

names were mentioned in the select list as per the Annexure P5. Thus, the

vacancies are still to be filled up.

23. It is pertinent to mention here that vide order dated 08.01.2018, this

Court made it clear that one of the vacancies which has been carried forward

would be the subject matter of this writ petition. Thus the respondent cannot

say, at this stage, that there is no vacancy left for the petitioner.

24. As argued by the counsel for the respondent that the respondent has

uniformly calculated the percentage of the candidates of 12 th class as to

whether candidates have secured 50% marks in their 12 th class exam

irrespective of the fact whether they appear in five subjects or six subjects.

25. Accordingly, respondent is directed to allow the petitioner in further

process for the selection of the post in question. It is upto the respondent

whether to call all the candidates who were rejected on this ground and

allow them to participate in the further selection process and if found

eligible otherwise, they may be selected accordingly. The whole exercise

shall be carried out within two months from the receipt of this order.

26. The petition is allowed and disposed of, accordingly.

CM APPL. No.22729/2018

In view of the order passed in the present writ petition, the application

has been rendered infructuous and is accordingly, disposed of.

(SURESH KUMAR KAIT) JUDGE APRIL 16, 2019 ab