Allahabad High Court
Vidyut Sewa Ayog U.P.Power Corporation ... vs Jitendra Kumar Mishra W.P. No. 29877 ... on 12 January, 2017
Bench: Amreshwar Pratap Sahi, Sanjay Harkauli
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH ?AFR Court No. - 1 Case :- SPECIAL APPEAL No. - 9 of 2017 Appellant :- Vidyut Sewa Ayog U.P.Power Corporation Ltd.Thr Chairman&Ors. Respondent :- Jitendra Kumar Mishra W.P. No. 29877 (S/S) Of 2016 Counsel for Appellant :- Subhash Vidyarthi Counsel for Respondent :- Ganga Prasad Srivastava Hon'ble Amreshwar Pratap Sahi,J.
Hon'ble Sanjay Harkauli,J.
Heard learned counsel for the appellants and Sri G.P. Srivastava, learned counsel for the sole respondent.
This appeal raises an interesting question about the interpretation relating to the eligibility condition prescribed by the appellants for recruitment on the post of Technician Grade-2 (Trainee)- Electrical.
The rule of eligibility requires that the candidate should have passed High School Examinations from the concerned Board with the subjects of Mathematics and Science. The petitioner having passed his High School Examination also cleared his Intermediate Examination in the first division. The petitioner however, had cleared the High School Examination with grace marks having been awarded to him in the subject of Mathematics.
The petitioner appeared in the selections, but when the results were declared, the respondent-petitioner having not found his name in the select list questioned the same by filing a writ petition giving rise to this appeal contending that the appellants have erroneously not treated the respondent petitioner to be eligible on the ground that he had passed his High School Examination with Mathematics, where he had been awarded grace marks.
The appellants relied on certain judgments of learned Single Judges including the judgment in writ petition no.45332 of 2011, Rambaboo Shah Vs. State of U.P. and others, decided on 12.8.2011, where a learned Single Judge of this Court has held that if a candidate has been awarded grace marks in Mathematics, then in view of the examination pattern of the Board that candidate will not be presumed to have passed the subject of Mathematics. Relying on the said judgment similar writ petitions have been dismissed by the same learned Single Judge who has delivered the impugned judgment being writ petition nos. 857(SS) of 2016, 1028(SS) of 2016 and 26124(SS) of 2016.
However, when the learned Single Judge was apprised of the aforesaid decisions, the same has been distinguished by the learned Single Judge in the impugned judgment keeping in view the factual situation in the present case where the respondent petitioner had also cleared his Intermediate Examinations with first division marks including distinction in Mathematics.
The contention of the learned counsel for the appellants is that there was no legal or factual distinction at all and therefore the learned Single Judge has committed an error in proceeding to allow the writ petition by drawing a distinction which does not exist.
Having gone through the judgments as mentioned in the impugned judgment as well as the aforesaid facts, what we find is that no such prescription of ineligibility due to passing exams with grace marks has been made by the appellants while prescribing the eligibility conditions or qualification for the post in question. Thus, it is only on the strength of the judgment of the learned Single Judge in writ petition no.45332 of 2011 and the ratio thereof that the appellants contend that the respondent petitioner does not possess the minimum eligibility qualification of having passed High School Examinations.
We have also heard the learned Standing Counsel for the State as the learned Standing Counsel represents the U.P. Board of High School and Intermediate Examinations. Learned Standing Counsel has advanced his submissions contending that it is only after having failed that grace marks are awarded and therefore to that extent the conclusion drawn by the learned Single Judge in the judgment dated 12.8.2011 in the case of Rambaboo Shah (supra) correctly interprets the rule with regard to awarding of grace marks. He however, submits that this question as to whether a person who has been declared pass on the strength of grace marks is eligible or ineligible is not the issue with the U.P. High School and Intermediate Examinations Board and it is for the appellants-employer to advance submissions in respect thereof.
In view of the aforesaid position that emerges, this Court has now to examine the correctness or otherwise the reasoning given in the judgment of Rambaboo Shah (supra) that has been distinguished by the learned Single Judge in the judgment under appeal.
In our considered opinion, once the respondent-petitioner has been declared passed by the U.P. Board of High School and Intermediate Examinations, then the respondent-petitioner has no further opportunity of improving upon his marks in the same subjects by re-appearing in the same examinations. His certification of having passed the High School Examination therefore becomes final and that is also evident by the fact that the respondent-petitioner thereafter has pursued his studies further and has passed his Intermediate Examinations as well. After having been declared as passed and awarded a certificate, the respondent-petitioner cannot be treated to have failed in the High School Examination, nor does the recruitment rule prescribed for eligibility by the appellants makes out any such distinction for the purpose of entertaining the candidature of the respondent-petitioner. In such circumstances, we do not find the rule to have been correctly interpreted in the case of Rambaboo Shah (supra) so as to make it applicable on the facts of the present case. The learned Single Judge therefore, while proceeding to distinguish the applicability has arrived at the correct conclusion and therefore the discretion exercised by the learned Single Judge for all the aforesaid reasons does not deserve to be interfered with.
The appeal lacks merit and is accordingly rejected.
Order Date :- 12.1.2017 arnima