Allahabad High Court
Suneel Kumar And 46 Ors. vs State Of U.P. And 3 Ors. on 7 October, 2017
Author: Saumitra Dayal Singh
Bench: Saumitra Dayal Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Court No. - 28 Case :- WRIT - A No. - 58918 of 2016 Petitioner :- Suneel Kumar And 46 Ors. Respondent :- State Of U.P. And 3 Ors. Counsel for Petitioner :- Seemant Singh Counsel for Respondent :- C.S.C.,Abhijeet Singh,Ayank Mishra with Case :- WRIT - A No. - 59431 of 2016 Petitioner :- Sunil Kumar Yadav And 2 Ors. Respondent :- State Of U.P. And 3 Ors. Counsel for Petitioner :- Suhel Ahmad Azmi Counsel for Respondent :- C.S.C.,Ayank Mishra with Case :- WRIT - A No. - 59920 of 2016 Petitioner :- Rohit Kumar Yadav Respondent :- Electricity Services Commission, U.P.P.C.L. Counsel for Petitioner :- Pramod Kumar Singh,P.K.Singh,S.S. Sharma Counsel for Respondent :- Ayank Mishra with Case :- WRIT - A No. - 60258 of 2016 Petitioner :- Wasim Raza And 7 Ors. Respondent :- State Of U.P. And 3 Ors. Counsel for Petitioner :- Suhel Ahmad Azmi Counsel for Respondent :- C.S.C.,Ayank Mishra with Case :- WRIT - A No. - 60562 of 2016 Petitioner :- Vikram Rajak Respondent :- State Of U.P. And 3 Ors. Counsel for Petitioner :- Siddharth Khare Counsel for Respondent :- C.S.C.,Ayank Mishra,J.P. Pandey with Case :- WRIT - A No. - 61593 of 2016 Petitioner :- Rajeev And Anr. Respondent :- State Of U.P. And 3 Ors. Counsel for Petitioner :- Suhel Ahmad Azmi Counsel for Respondent :- C.S.C.,Ayank Mishra,J.P. Pandey with Case :- WRIT - A No. - 1800 of 2017 Petitioner :- Punit Kumar And 4 Ors. Respondent :- State Of U.P. And 3 Ors. Counsel for Petitioner :- Suhel Ahmad Azmi Counsel for Respondent :- C.S.C.,Abhijeet Singh,Ayank Mishra,J.P. Pandey with Case :- WRIT - A No. - 3352 of 2017 Petitioner :- Sachin Saini Respondent :- State Of U.P. & Another Counsel for Petitioner :- Ashwini Kumar Srivastava Counsel for Respondent :- C.S.C.,J.P. Pandey with Case :- WRIT - A No. - 3446 of 2017 Petitioner :- Shashi Prakash Goswami Respondent :- State Of U.P. And 3 Ors. Counsel for Petitioner :- Syed Mohammad Abbas Abdy Counsel for Respondent :- C.S.C.,Abhijeet Singh,Ayank Mishra,J.P. Pandey with Case :- WRIT - A No. - 3730 of 2017 Petitioner :- Jitendra Kumar Patel Respondent :- State Of U.P. And 3 Others Counsel for Petitioner :- Suhel Ahmad Azmi Counsel for Respondent :- C.S.C.,Abhijeet Singh,Ayank Mishra with Case :- WRIT - A No. - 3846 of 2017 Petitioner :- Neeraj Kumar Bharti And Another Respondent :- State Of U.P. And 3 Others Counsel for Petitioner :- Thakur Prasad Dubey Counsel for Respondent :- C.S.C.,Ayank Mishra,Syed Ahmed Faizan with Case :- WRIT - A No. - 5145 of 2017 Petitioner :- Pushpendra Kumar And Another Respondent :- State Of U.P. And 3 Others Counsel for Petitioner :- Suhel Ahmad Azmi Counsel for Respondent :- C.S.C.,Abhijeet Singh,Ayank Mishra,J.P. Pandey with Case :- WRIT - A No. - 5156 of 2017 Petitioner :- Dhanesh Kumar And 2 Others Respondent :- State Of U.P. And 3 Others Counsel for Petitioner :- Seemant Singh Counsel for Respondent :- C.S.C.,Abhijeet Singh,Ayank Mishra,J.P. Pandey with Case :- WRIT - A No. - 8141 of 2017 Petitioner :- Satyapujan And Another Respondent :- State Of U.P. And 3 Others Counsel for Petitioner :- Suhel Ahmad Azmi Counsel for Respondent :- C.S.C.,Abhijeet Singh,Ayank Mishra with Case :- WRIT - A No. - 11033 of 2017 Petitioner :- Manoj Kumar Respondent :- State Of U.P. And 3 Others Counsel for Petitioner :- Atmaram Nadiwal,Dinesh Kumar Yadav Counsel for Respondent :- C.S.C.,Abhijeet Singh,Ayank Mishra,J.P. Pandey with Case :- WRIT - A No. - 16709 of 2017 Petitioner :- Avi Kumar Respondent :- State Of U.P. And 3 Ors. Counsel for Petitioner :- Suhel Ahmad Azmi Counsel for Respondent :- C.S.C.,Abhijeet Singh,Ayank Mishra,J.P. Pandey with Case :- WRIT - A No. - 19051 of 2017 Petitioner :- Deeksha Sonee Respondent :- State Of U.P. And 3 Ors. Counsel for Petitioner :- Ashish Kumar Gupta,Haidar Ali Counsel for Respondent :- C.S.C.,Abhijeet Singh,Ayank Mishra,J.P. Pandey with Case :- WRIT - A No. - 28097 of 2017 Petitioner :- Pawan Pratap And Anr. Respondent :- State Of U.P. And 2 Ors. Counsel for Petitioner :- Jaswant Rai Counsel for Respondent :- C.S.C.,Abhijeet Singh,Ayank Mishra,J.P. Pandey with Case :- WRIT - A No. - 28442 of 2017 Petitioner :- Narendra Kumar Gond Respondent :- State Of U.P. And 3 Others Counsel for Petitioner :- Suhel Ahmad Azmi,Neeraj Srivastava Counsel for Respondent :- C.S.C.,Abhijeet Singh,J.P. Pandey with Case :- WRIT - A No. - 34457 of 2017 Petitioner :- Anil Kumar Respondent :- U.P.Power Corporation Thru. Its M.D. And Another Counsel for Petitioner :- V.K.Singh,J.P. Singh Counsel for Respondent :- Kapil Dev Singh Rathore with Case :- WRIT - A No. - 37783 of 2017 Petitioner :- Hari Datta Respondent :- State Of U.P. And 3 Others Counsel for Petitioner :- Suhel Ahmad Azmi Counsel for Respondent :- C.S.C.,Abhijeet Singh,J.P. Pandey with Case :- WRIT - A No. - 43348 of 2017 Petitioner :- Dileep Kumar Patel Respondent :- State Of U.P. And 13 Ors. Counsel for Petitioner :- Suhel Ahmad Azmi,Abhijeet Singh Counsel for Respondent :- C.S.C.,J.P. Pandey Hon'ble Saumitra Dayal Singh,J.
Heard Sri Seemant Singh, Sri S.M.A. Abdi, Sri Suhel Ahmad Azmi, Sri Neeraj Srivastava, Sri J.P. Singh, Sri V.K. Singh, Sri Jaswant Rai and Sri T.P. Dubey, learned counsel appearing for the petitioners and Sri J.P. Pandey, learned counsel for the respondent no. 4, Sri Abhijeet Singh, learned counsel for the respondent nos. 2 and 3, as also Sri Anand Tewari, learned Standing Counsel for the State-respondent no. 1.
These writ petitions have been filed seeking relief to quash the select list dated 09.12.2016 issued by the Secretary, Electricity Service Commission, U.P. Power Corporation, Shakti Bhawan, Lucknow, for selection on the post of Technician Grade-II (Trainee) Electrical, pursuant to the written examination conducted by the aforesaid Commission in pursuance of the advertisement dated 03.05.2016.
Common case of the petitioners is, they had applied for appointment on the post of Technician Grade II (Trainee) Electrical, pursuant to the advertisement dated 03.05.2016 issued, for 623 posts. It is their further case, they appeared in and qualified the written examination held in pursuance of the aforesaid advertisement. They were called for document verification on 03/04.11.2016. Thereafter, it appears the candidature of all the petitioners was rejected on a common ground - according to the Electricity Service Commission, the petitioners did not possess the essential education qualification being High School pass certificate with Science and Mathematics as subjects in that examination. The Electricity Service Commission, on 09.12.2016 declared the select list, which has become the subject matter of challenge in these writ petitions.
Undisputedly, the Parichalkiye Karmchari Varg Seva Viniymawali, 1995 (hereinafter referred to as the Regulations), have been framed under Section 79 (c) read with Section 79 (k) of the Electricity (Supply) Act, 1948. Regulation 9, provides, educational and technical qualification for direct recruitment as also for promotion would be as prescribed under Appendix-A and Appendix-B to the Regulations. Entry no. 23 of the Appendix- A to the Regulations reads as under:-
श्रेणी - प4 वेतनमान : रु 1200-30-1350-40-1500-50-1800 1 2 3 4 5 6 ¼d½ ;kaf=d संवर्ग 23 ¼v½ lc LVs'ku vkijsVj fLop cksMZ vkijsVj ¼c½ ehVj jhMj ¼o½ twfu;j bysDVªhf'k;u twfu;j bysDVªhf'k;u xzsM&1 bysDVªhf'k;u] bysDVªhf'k;u xzsM&A@AA ¼n½ lsUVªhQ~;wxy feL=h ¼;½ ehVj VsLVj ,.M fjis;jZ ehVj VsLVj] ehVj fedsfud rDuhf'k;u xzsM&2 ¼fo|qr½ Ekk/;fed f'k{kk ijh"kn m0iz0 dh gkbZ Ldwy ;k led{k ijh{kk foKku ,oa xf.kr fo"k; ds lkFk mRrh.kZ rFkk bysDVªhf'k;u VªsM esa vf[ky Hkkjrh;@jkT; O;kolkf;d izek.k &i= 1&2 o"kZ dk dk;Z dk vuqHkoA Ekk/;fed f'k{kk ijh"kn m0iz0 dh gkbZ Ldwy ;k led{k ijh{kk mRrh.kZ ,oa Js.kh i&3 esa 5 o"kZ ;k Js.kh i&2 esa U;wure 10 o"kZ dh fu;fer lsokA 33 1@3 izfr'kr Js.kh i&3 ,oa i&2 ls inksUufr }kjk rFkk 66&2@3 izfr'kr lh/kh HkrhZ }kjkA Also, undisputedly, the aforesaid Entry no. 23 of Appendix-A to the Regulations was amended through a resolution passed by the Power Corporation dated 01.04.2016. The unamended and amended educational and technical qualification as prescribed for appointment on the post of Technician Grade-II (Trainee) Electrical read as under:-
1- 'kSf{kd vgZrk orZeku 'kSf{kd vgZrk Lak'kksf/kr 'kSf{kd vgZrk ¼1½ Ekk/;fed f'k{kk ijh"kn] m0iz0 dh gkbZ Ldwy ;k led{k ijh{kk foKku ,oa xf.kr fo"k;ksa ds lkFk mRrh.kZ gksuk vko';d rFkk bysDVªhf'k;u bysfDVªdy@ bysfDVªdy ¼dkS'ky fodkl ds vUrxZr fo|qr forj.k½ VªsM esa vf[ky Hkkjrh; jkT; O;kolkf;d izek.k&i=A ¼2½ "DOEACC" ¼orZeku esa NIELIT ½ }kjk fuxZr "CCC"/"O" ysosy@ ^^,^^ ysosy@^^ch^^ ysosy vFkok ^^lh^^ ysosy izek.k i=A ¼1½ ek/;fed f'k{kk ifj"kn] m0iz0 dh gkbZLdwy ;k led{k ijh{kk foKku ,oa xf.kr fo"k;ksa ds lkFk mRrh.kZ gksuk vko';d rFkk bysDVªhf'k;u@ bysfDVªdy@ bysfDVªdy ¼dkS'ky fodkl ds vUrxZr fo|qr forj.k½ VªsM esa vf[ky Hkkjrh; jkT; O;kolkf;d izek.k&i=A ¼2½ &foyqIr& Thereafter, posts of Technician Grade-II (Trainee) Electrical were advertised which advertisement has also been annexed with the writ petition. Under Clause-2 of that advertisement essential educational qualification has been specified as below:-
"2- vfuok;Z 'kSf{kd vgZrk;s%& vkosnu ds le; vH;FkhZ ds ikl fuEu 'kSf{kd vgZrk dk gksuk vfuok;Z gSA ek/;fed f'k{kk ifj"kn] m0iz0 dh gkbZLdwy ;k led{k ijh{kk] foKku ,oa xf.kr fo"k;ksa ds lkFk mRrh.kZ gksuk vko';d rFkk bysDVªhf'k;u@ bysfDVªdy@ bysfDVªdy ¼dkS'ky fodkl ds vUrxZr fo|qr forj.k½ VªsM esa vf[ky Hkkjrh;@ jkT; O;kolkf;d izek.k& i=A 3- vk;q% fnuakd 01&07&2015 dks U;wure 18 o"kZ ,oa vf/kdre 40 o"kZA"
It is also an undisputed fact that all the petitioners have been declared passed in the High School examination conducted by the Board of High School and Intermediate Education Uttar Pradesh (hereinafter referred to as the Board), after appearing in six subjects. Further, each petitioner has been declared pass in that examination, with clear pass marks in five subjects and with grace marks, either in Mathematics or Science - the sixth subject in that examination. It is on this count the dispute has arisen in this batch of writ petitions. There is no dispute as to the petitioners possessing the technical qualification as prescribed under the Regulations.
Sri Seemant Singh, learned counsel for the petitioner has submitted, the essential educational qualification prescribed under the Regulations is one - eligible candidate for post of Technician Grade-II (Trainee) Electrical should have passed the High School examination with Mathematics and Science as subjects offered, in that examination.
According to him, it is not a condition that such candidate must have passed in the subject Mathematics and Science, in that examination. He therefore submits, when the Regulations and the advertisement issued in pursuance thereof, only prescribed an educational qualification that an eligible candidate must have passed the High School examination with Mathematics and Science as subjects in that examination, it was not open to the Electricity Service Commission to impose a new, different or higher or better qualification, to exclude the petitioners from the select list, contrary to the Regulations and the education qualification as advertised.
Second, alternatively, he submits, the fact that the petitioners have been declared passed in the High School examination in the subjects of Mathematics and Science, though with grace marks, they fulfill the educational qualification as is being implemented by the Electricity Service Commission, even if the stand of the respondents is accepted in respect of first submission made by learned counsel for the petitioners. It cannot be said that the petitioners must have further passed in those two subjects without award of any grace marks.
Thus he submits, even if it were to be assumed, purely for the sake of arguments, that it was an essential educational qualification prescribed that the candidate must have passed High School examination with pass marks in the subject of Mathematics and Science, even then, the petitioners have to be considered eligible candidates as they have passed the examination as the Board, has awarded pass marks to them in the subjects Mathematics or Science, in the High School examination. None of the petitioners has been declared pass in the High School examination with 'failed' marks in the subjects Mathematics or Science.
In the above regard he further submits, the conduct of examination, award of marks and declaration of result of High School examination falls within the exclusive domain of the Board. The Electricity Service Commission (hereinafter referred to as the Commission) has no role to play in the same. The Commission cannot go behind the petitioners results to cull out an ineligibility based on award of certain grace marks, when the Regulations and the relevant advertisement are silent in this regard. It has thus been submitted, the distinction drawn by the Commission is wholly arbitrary.
Third, reliance has been placed by learned counsel for the petitioners on a judgment of this Court in the case of Jitendra Kumar Mishra Vs. Chairman-cum-M.D. U.P.P.C.L. Ltd. & others, dated 20.12.2016, passed in a writ petition being Service single No. 29877 of 2016 as approved by the division bench of this Court in Special Appeal No. 9 of 2017 Vidyut Sewa Ayog U.P.Power Corporation Ltd. Through Chairman and others Vs. Jitendra Kumar Mishra, dated 12.01.2017. Learned counsel for the petitioners submits, the case of Jitendra Kumar Mishra had arisen from the same selection process and the learned single judge and the division bench upon appeal, have held that a candidate who passed High School examination with grace marks in Mathematics subject, possessed essential qualification for appointment on the post of Technician Grade-II (Trainee) Electrical.
In addition to the above, Sri S.M.A. Abdi, learned counsel for the petitioner has submitted, over and above the High School pass certificate, the petitioners' have technical qualification of ITI being a certificate of course of Electrician/Electrical. Therefore, according to him the petitioners have been shown to have overcome the demerit, if any, that may have arisen upon award of grace marks to them in the High School examination, noted above. According to him the present petitioners are thus wholly eligible under the Regulations and the conditions prescribed under the advertisement.
Other learned counsel appearing for the petitioners in remaining writ petitions have adopted the submissions so made by Shri. Seemant Singh and Sri S.M.A. Abdi.
Sri J.P. Pandey, learned counsel for the respondent-corporation, on the other hand submits, the qualification as prescribed under the Regulations and the advertisement is to the effect that candidates must necessarily have passed in the Mathematics and Science subjects at the High School examination without award of grace marks. In this respect he has relied on the language used in the Regulations as amended wherein the word "Aawashyak" has been added upon amendment made in the year 2016.
Also, he has relied on the judgment of a learned single judge of this Court in the case of Rambaboo Shah Vs. State of U.P. and others in Writ Petition No. 45332 of 2011 decided on 12.08.2011, wherein it had been held a person who cleared Mathematics subject with 9 grace marks cannot be said to be a person - "High School pass with Science and Maths". According to him, to earn eligibility a candidate must have declared pass by the Board, in the subjects of Mathematics and Science, without award of any grace marks.
Elaborating his submission, further Sri Pandey further relied on a division bench decision of this Court in the Case of Ramendra Kumar Vs. State of U.P. and others in Special Appeal No. 1492 of 2012, decided on 03.09.2012, to submit that grace marks are not to be included in passing marks.
Sri Pandey, then submitted, in exact similar circumstances, in the case of Guruvendra Singh Vs. Electricity Service Commission, U.P.Power Corporation Ltd. And another, being writ petition Service Single No. 857 of 2016 decided on 8.3.2016, a learned single judge had dismissed the writ petitions by following the judgment in the case of Rambaboo Shah (supra).
Then, Sri Pandey submits the judgment in the case of Jitendra Kumar Mishra (supra) as upheld by the division bench in Special Appeal, is based on additional facts which do not obtain in the present bunch of writ petitions. In the case of Jitendra Kumar Mishra, it has been contended, that petitioner had been found to have cleared Intermediate examination with good marks in Mathematics. Therefore, he submits that decision is wholly distinguishable and the petitioners case is covered by the judgment in the case of Rambaboo Shah (supra).
According to Sri Pandey, it is because of that distinguishing fact alone that the writ petition in the case of Jitendra Kumar Mishra has been allowed. In absence of such fact obtaining in the present bunch of writ petitions, the same deserve to be dismissed as in terms with the decision in the case of Guruvendra Singh (supra), arising for the same selection process. He relies on the judgment of the Supreme Court in the case of Bhavnagar University Vs. Palitana Sugar Mills (P) Ltd 2003 (2) SCC 111, to submit even a small distinction of facts would distinguish the binding precedential value of a judgment.
Having noted the submission so made by learned counsel for the parties, it is to be first examined whether there is any condition prescribed either under the Regulations or in the advertisement that an eligible candidate must have necessarily passed the High School examination, that too in the subjects of Mathematics and Science, without award of any grace marks.
A plain reading of the unamended Appendix to the Regulations suggests, educational qualification prescribed thereunder is in two parts. First, an eligible candidate is necessarily required to have passed the High School examination. However, such qualification is not complete. For eligibility to arise, such candidate must have offered Science and Mathematics as subjects in that course/examination. The Regulation is silent and makes no reference as to the marks obtained by the candidate in those subjects. Mention of the subjects Science and Mathematics appears to be more by way of indication of the candidate having taken science stream at High School examination rather than of merit achieved in those subjects in that examination. It appears the prescription is only of having studied those subjects at High School examination. As to the result, the prescription appears to be only that the candidate must have passed the High School examination without reference to order/level of merit or proficiency achieved either in the High School examination itself or in the subjects of Mathematics and Science.
Unlike cases where a certain minimum percentage such as 55% or 60% is prescribed for purpose of earning eligibility, the Regulations only require the candidate to have 'passed' the High School examination. It is one thing to say that a person has passed the High School examination, it is another thing to say that a person has passed in each subject at the High School examination and it is still another thing to say that a person has passed in each subject at the High School examination without award of grace marks. The Regulations as they stand only appear to read, imply and refer to the first of the three situations contemplated above.
In this regard, it may be further noted, Chapter XII of the Regulations Under the Intermediate Education Act, 1921, provide for General Regulations Regarding Examinations. While regulation 17 thereunder (considered in the judgement in the case of Rambaboo Shah (supra)), refers to eligibility to offer additional subjects after being successful in the High School and Intermediate examination, it is Regulation 20 falling in that Chapter that appears to be more relevant. Regulation 20 (ka) (1) clearly provides a student who attains pass marks in any five out of six subjects at High School examination will be declared pass at that examination and be further allowed an option to appear in the improvement examination in the subject in which he may have failed, if he desires to pursue that subject for further studies.
Also, under the Regulations framed under the Electricity Act, there is no weightage given to higher marks obtained by a candidate over another who may have obtained much lower marks. Thus a candidate who may have obtained 100% marks in Science and Mathematics subjects at High School level stands on the same footing as another with 33% marks (pass marks) in the same subjects at that examination. The Regulations do not look at the student with higher marks in subjects Science and Mathematics as better or preferable over the other student with lower marks. This has perhaps been done because the Regulation only creates an eligibility for candidates to appear in an open competitive examination conducted by the Commission.
Then, upon amendment made in the year 2016, the word "Awashayak" has been added. However, it is not accompanied by use of any word or expression to indicate that it has been made essential for such candidate to have achieved pass marks in the subjects Mathematics and Science, at that examination, without award of grace marks. The word "Awashayak" has been added after specification of the condition. The condition is to the effect that an eligible candidate must have passed the High School examination with Science and Mathematics as subjects offered at that examination. Thus, in the first place, it is passing the High School examination that has been made an essential condition. As noted above, under the Regulation framed by the Board, a student is declared pass at High School examination irrespective of the fact that he may have failed in any one subject at that examination.
The further/second stipulation or qualification in the essential educational qualification that the candidate must have had Science and Mathematics as subjects for the purpose of that examination. It remained unaltered even after the amendment made to the Regulations. In absence of any words or expression to indicate that it is necessary to attain pass marks in the subjects without grace marks in the subjects of Science or Mathematics, it is not possible to infer such intendment. Learned counsel for the petitioner appears to be right in his submission that the petitioners cannot be held inelligible in absence of any words or expression used in the Regulations to the effect that grace marks would not be included for purpose of considering whether a prospective candidate had passed the High School examination.
Then, a student who appears at the High School examination is granted or denied Pass Certificate on the basis of own evaluation system of the Board. It may include award of grace marks or opportunity to appear in improvement and/or compartment examination and also award of divisions, distinctions etc. It is reflected in the result awarded by the Board.
The Board has evolved its own, independent mechanism, method, procedures and standards for conduct of High School examination; evaluation of the students performance; award of marks; determination of pass marks etc. These are internal to the Board. The fact that the petitioners were found eligible by the Board for award of grace marks in a particular subject was a decision made by the Board while evaluating the performance of the petitioners in the examination conducted by it.
Once the Board found the petitioners entitled to be declared pass in particular subjects - Mathematics or Science, whether with or without award of grace marks, it stands established, that the petitioners were, in the opinion of the Board (the authority that conducted the examination), good enough to be declared pass in the particular subject. Thereafter, it did not remain open to an outside agency such as the Commission to go behind that result and opine that the petitioners had not attained pass marks in either Maths or Science, as the case may be.
Award of marks and mechanism for declaring the candidates pass or fail in such examination falls within the exclusive domain of the Board or the authority that conducts such examination. The Commission has no say in that matter even if it may be open to it to recognize or not to recognize the particular examination conducted by the said Board or to prescribe its own conditions or qualifications as to eligibility or suitability of the candidates who it may be considered for selection or appointment. Thus it may have been open to the Commission to prescribe Regulations by way of essential educational qualification that an eligible candidate must have achieved a High School pass certificate with pass marks in subjects Mathematics and Science, without award of grace marks. However, such a stipulation must be express or such as may directly emerge/arise from a plain reading of the Regulation. Such is not the case here.
In this case, as noted above, it does not appear, in the first place there is any stipulation either under the Regulations or in the advertisement, restricting the eligibility (to apply on the post of Technician Grade-II (Trainee) Electrical), to only such candidates who may have passed the High School examination without grace marks. In absence of any such condition being prescribed either in the Regulations or in the advertisement, it is difficult to take a contrary view as to existence of such a condition in the Regulations. The effect of the judgment in the case of Rambaboo Shah (supra), taking a contrary view would however have to be still considered, a little later.
As to the argument raised by learned counsel for the petitioner - to pass High School examination with Science and Maths as subjects, it is irrelevant whether a candidate had passed in those subjects with or without grace marks. As discussed above, the conduct of examination and declaration of results by the Board is a matter falling within its exclusive domain. Once the Board declares the result of High School examination conducted by it and based on its test and method of evaluation of students taking that examination, awards pass marks in any subject, on whatever criteria it may evolve - of merit marks or grace marks or otherwise, then, to the outside world such candidate has to be treated at par with all other students who may have passed the same examination, in so far as the pass result is concerned. That is a status acquired by virtue of the result declared by the Board. It cannot be diluted or violated.
Without first prescribing its own criteria as to eligibility to exclude prospective candidates (from appearing in open competitive examination), who may have passed in those subjects by award of grace marks, the Commission could not have later turned around and discriminated against the petitioners, by observing that the petitioners had passed either in Science or Mathematics subject, with grace marks in the High School examination after conduct of its own written test, in which the petitioners competed with all other candidates who may have passed High School with Science and Maths as subjects, without award of grace marks.
Thus, it may have been open to the said Commission to prescribe, as a condition of eligibility, that a prospective candidate would be eligible if he had passed the Science and/or Maths subject in the High School subject with certain specified marks above the bare pass marks and thereby exclude the petitioners from the zone of consideration. However, in absence of such condition in the Regulations, it could not have disqualified the petitioners after having itself found the petitioners successful in the open competitive examination conducted by it, to determine their suitability to the posts advertised. To that extent, it was irrelevant for the Commission, whether the candidate passed the High School examination with or without grace marks in Science or Maths.
Eligibility only created a right to appear in a written examination conducted by the Board. If higher or better knowledge or proficiency in subjects Maths and Science was required for the post of Technician Grade-II (Trainee) Electrical than may have been acquired by a person who may have passed Science and Maths at High School level, with grace marks, the same was open to test and in the instant case, it was tested in the written examination conducted by the Commission. Clearly, despite award of grace marks at High School level, in either Science or Mathematics, the petitioners have fared well in the examination conducted by the Board. They appear to have achieved the level of proficiency in the subjects Science and Mathematics required for the job being offered to them. Thus, for that reason also, the objection raised by the Commission appears to be superficial.
Then, it is remains to be examined whether the judgment in the case of Jitendra Kumar Mishra (supra), as upheld by the division bench is applicable to this writ petition. Before making discussion in this regard, it is relevant to take note of the decisions relied upon by learned counsel for the parties.
In the case of Rambaboo Shah (supra) pertained to admission to three year diploma engineering course. It appears, for the purpose of that selection to a technical course, the required minimum qualification was High School passed, with Science and Mathematics. It has been so noted in the judgment itself. Similar condition does exist in the present case as well.
Then, the petitioner in that case had passed the High School examination with 9 grace marks in Mathematics. The learned single judge considered the case of that petitioner and held as under:-
"After respective arguments have been advanced, undisputed factual position, which is emerging in the present case, that relevant course in which petitioner is seeking admission is three years Diploma Engineering Technology Course. Minimum required qualification for getting admission in the said course is High School pass certificate alongwith subject of Science and Mathematics. Petitioner has undertaken his High School examination and in the High School examination there are total six subjects. In Hindi petitioner has obtained 41 marks, in English petitioner has obtained 43 marks, in Mathematics petitioner has obtained 24 marks, in Science, petitioner has obtained 46 marks, in Social Science petitioner has obtained 57 marks and in Sanskrit petitioner has obtained 70 marks. Petitioner has been awarded 9 grace marks in Maths. Petitioner has appeared in all the six subjects and has passed only in five subjects and in Mathematics she has been awarded grace mark in accordance with rule. Under Regulation 17(1) of Chapter-12 of the Board Rules a candidate who has cleared in all the six subjects or minimum five subjects including Hindi will be given certificate of pass. Petitioner on the basis of this particular regulation has been treated to be passed but the fact of the matter is that in Maths petitioner has not at all secured minimum marks prescribed and in Mathematics 9 grace marks has been provided to the petitioner. Requirement is of having passed High school from Madhyamik Shiksha Parishad or any other equivalent examination with Science and Mathematics. Once 5 subjects have been made foundation and basis for issuing pass certificate in favour of the petitioner, and same is not at all inclusive of subject of Mathematics, then in this background petitioner cannot be said to be possessing minimum eligibility criteria inasmuch as petitioner has been declared passed, based on the minimum 5 subject. The grade has also been mentioned, and a candidates has to acquire a minimum 'D" grade in all the passed subjects. D Grade ranges from 33-40 marks and here in the subject of Mathematics, petitioner has got 'EI grade marks which ranges from 21-32 and EI and E2 has to be treated as failed and 9 grace marks has been awarded to him as grace and in this background Grade-D has been given to him. Once such is the factual situation that petitioner has cleared Mathematics subject with 9 grace marks and has passed High school examination, based on 5 subject, then it cannot be said that petitioner has passed his High school examination with Science and Mathematics, both which is the requisite minimum eligibility criteria.
Consequently, present writ petition is dismissed".
(emphasis supplied) The ratio laid down in the case of Rambaboo Shah (supra) is clearly applicable to the facts of the case. However, it remains to be seen whether that judgment and the law laid down by learned single judge in that case is still good law.
Then, in the case of Ramendra Kumar Vs. State of U.P. And Ors decided on 03.09.2012, it appears, the dispute was not as to whether a student is to be considered passed High School with Mathematics and Science but whether in the case of a student who passed such examination with Mathematics and Science as subjects, with grace marks, whether those grace marks are to be included for the purposes of computation of his aggregate marks. In this regard, a division bench of this Court held as under:-
"The present special appeal has been filed against the judgment and order dated 8th August, 2012 passed by the learned single judge, whereby the writ petition preferred by the appellant seeking a direction to include the grace marks '5' , given by the Madhyamik Shiksha Parishad, Uttar Pradesh, Allahabad in the High School examination to the appellant be counted towards total marks obtained by him so as to enable him to get admission in engineering course. The grace marks are given in order to enable the student not to waste a year and is declared pass. No division is granted where grace marks are given. Even marks obtained by a student in a particular subject are not increased by grace marks. Therefore, the grace marks are not to be counted in total marks obtained by a student. It is not taken into consideration. Admittedly , the appellant has obtained less than 35% marks in High School examination and, therefore, the learned single judge has rightly dismissed the writ petition.
The appeal fails and is dismissed."
(emphasis supplied) In view of the above, the judgment in the case of Ramendra Kumar (supra) is not applicable to the present controversy inasmuch as in the instant case there is no dispute as to inclusion of grace marks in aggregate marks obtained by the petitioners, to determine the marks achieved by them at the High School examination.
Then in Writ Service single No. 857 of 2016 in the case of Guruvendra Singh Vs. Electricity Service Commission UP Power Corporation Ltd. and Anr. this Court held as below:-
"Heard.
As the matter in issue in both the above writ petitions is similar, hence both these writ petitions are being disposed of by a common order.
The petitioner appeared in a selection for the post of Technician Grade-II wherein the minimum qualification was High School with Science and Mathematics. The petitioner had appeared in the High School Examination with Science and Mathematics, but had failed in Mathematics and was passed by adding grace-marks to the total which according to the opposite parties does not satisfy the requirement of having passed ''High School with Science and Mathematics' which is essential for the duties to be discharged.
Learned counsel for the opposite party relies upon a judgment of this court dated 12.8.2011 passed in Civil Misc. Writ Petition No.45332 of 2011, wherein, in similar circumstances this court has held that the petitioner who failed in Mathematics could not be said to have passed the requisite qualification with Mathematics as subject.
As far as contention of the learned counsel for the petitioner that the petitioner no.2 in the connected writ petition had been allowed to appear with the same deficiencies, Sri Vidyarthi informs that he was considered by another Commission relating to another corporation.
In view of the above, this court does not find any ground for interference in the matter. The writ petitions are hereby dismissed.
A copy of this order be placed on the records of writ petition No. 1028 (SS) of 2016, Pushpendra v. State Of U.P. & Ors."
(emphasis supplied) This judgment is clearly based on the earlier judgment of another learned single judge in the case of Rambaboo Shah (supra). As noted above it remains to be examined whether that judgment is still good law.
Then coming to the judgment in the case of Jitendra Kumar Mishra (supra), it is seen that this case was also arising from the same selection process as is in question in the present case. The learned single judge undoubtedly, at the very beginning considered the distinguishing feature or additional facts, relevant to that case, by making the following observations;-
"According to the petitioner, he has passed High School Examination from the concerned Board, however, in the subject of Maths he had passed with 5 Grace-marks, however, he submits that in Intermediate also he studied in Science stream and obtained Ist Division marks in Maths and passed with Distinction in the subject of Math."
In this regard, as to the fact of such distinguishing feature learned single judge further noted as below:-
"Even a minor difference in facts can bring about a sea change as to the application of judicial precedents to the facts of a particular case, as is the case herein. This Bench has carefully gone through its earlier judgments as also the judgment of this court at Allahabad referred herein above. In none of the cases the factual scenario as existing herein presented itself before the court nor the aspect which is now being considered, was considered therein. In none of the said judgments it was the case of the petitioner that after having passed High school with grace marks in Maths the candidate while studying in the Science stream at the Intermediate level not only secured Ist Division marks in Maths, but passed with Distinction in the said subject, as in this case."
(emphasis supplied) Then, having taken note of the aforesaid distinguishing feature, the learned single judge proceeded to examine the purpose of prescribing the essential qualification. It was found the eligible candidate should be well versed in the subject of Science or Mathematics. In this regard, it was further observed that the situation would have been different if the candidate had passed that examination too, with grace marks.
Thereafter, in view of the fact that the petitioner Jitendra Kumar Mishra was found to have passed Intermediate examination with Science stream with 1st division marks in Mathematics (the subject he passed with help of grace marks at High School level), learned single judge held the judgment in the case of Rambaboo Shah (supra) was distinguishable. In this regard it was observed as under:-
"The purpose of prescribing educational qualification is that a person should have passed the High School examination and should be well versed with the subjects of Science and Maths. Had the petitioner been only High School pass with Grace marks in maths, the situation would have been the same as was considered in the earlier judgments, however, in addition to it, not only he has passed in the Science stream at the intermediate level, but has secured Ist Division marks in maths i.e. very subject in which he was declared pass with the help of Grace marks at the high school level. Not only this, he has passed Intermediate examination in the Science stream with Distinction in mathematics. In these circumstances, the earlier precedents do not create any hurdle in this case, as, this material fact changes the entire complexion of the case. None of the earlier judgments apply to the facts herein this case. It cannot be said that the petitioner does not possess the educational qualification as prescribed in the rules. Such a pedantic and hyper technical view would oust an otherwise meritorious candidate from selection."
(emphasis supplied) Thus, clearly the learned single judge, in the case of Jitendra Kumar Mishra (supra) allowed the writ petition not on the reasoning that the candidate having passed the High School examination with grace marks was eligible. Rather, learned single judge has reasoned that there were additional facts of that petitioner having acquired the next higher qualification with merit / 1st division marks in Mathematics. Therefore, looking into that qualification, learned single judge held that petitioner to be eligible.
Had the Commission accepted the judgment of the learned single judge, it would have been different situation. However, Vidyut Sewa Ayog questioned the judgment of learned single judge in Special Appeal No. 9 of 2017. The division bench then did not dismiss the appeal solely on the reasoning given by learned single judge. In this regard while it was submitted before the division bench by the Commission that the learned single judge in the case of Jitendra Kumar Mishra (supra) has erred in not following the earlier judgment of this Court in the case of Rambaboo Shah (supra), the division bench, at the very beginning of the discussion made an observation as below:-
"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."
(emphasis supplied) Then, while dealing with the judgment in the case of Rambaboo Shah (supra) and the argument raised by the Commission on the strength of that judgment, the division bench specifically framed a question as to the correctness or otherwise of the reasoning given in the judgment in the case of Rambaboo Shah (supra). In this regard it has observed as under:-
"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."
(emphasis supplied) It is this question that has been considered and answered by the division bench in the subsequent paragraph in the following words:-
"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."
The reasoning of the division bench does not stop there. The reasoning which is crucial for the present writ petition, in fact appears thereafter when the division bench, in the next sentence of the same paragraph, where it has been held as below:-
"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."
(emphasis supplied) If there was any doubt in this regard, the division bench has further made it clear in many words by observing...
"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."
(emphasis supplied) The division bench having specifically held that the rule was not correctly interpreted in the case of Rambaboo Shah (supra), there remains no doubt as to the correct position that emerges. Consequently, no reliance can be placed on that judgment or the judgement in the case of Guruvendra Singh (supra) that follows Rambaboo Shah. It is on the cumulative reasoning given by the division bench that the special appeal filed by the Commission was rejected. The said appeal was not rejected solely on the reasoning given by the learned single judge in allowing the writ petition of Jitendra Kumar Mishra (supra).
In this regard, as to what constitutes ratio decendi, in the case of State of Gujarat v. Manoharsinhji Pradyumansinhji Jadeja, (2013) 2 SCC 300, the Supreme Court observed as under:-
"78. Having considered the respective submissions, we find force in the submission of the learned Senior Counsel for the appellants. A close reading of para 20 of Nagbhai Najbhai case3 is clear to the pointer that irrespective of the definition of "bid land" under the 1974 Amendment Act, having regard to the definition of "bid land" under Act 3 of 1952, such land would fall within the definition of "agricultural land" as defined in Section 2(1) of the 1960 Act. This Court in fact made it very clear in its perception while stating the said position by holding that it was an added reason for holding that the Land Ceiling Act, as amended, applied to "bid land". One more reason which this Court mentioned was that the land in question survived acquisition under the 1952 Act only because they were "bid lands" which, by virtue of its character was being used by Girasdars for grazing by cattle and thereby stood excluded from acquisition. Therefore, when this Court examined the character of the "bid land" which was used for grazing purpose as one falling within the definition of "agricultural land" even without the implication of the 1974 Amendment Act, the reliance placed upon the said decision merits acceptance. The said submission of the learned Senior Counsel for the appellants is supported by the decisions in London Jewellers4, Jacobs5, Behrens6 and Somawanti7. In the decision in London Jewellers4, it has been held as under: (KB p. 222) "... I cannot help feeling that if we were unhampered by authority there is much to be said for this proposition which commended itself to Swift, J. and which commended itself to me in Folkes v. R.16, but that view is not open to us in view of the decision of the Court of Appeal in Folkes v. R.17 In that case two reasons were given by all the members of the Court of Appeal for their decision and we are not entitled to pick out the first reason as the ratio decidendi and neglect the second, or to pick out the second reason as the ratio decidendi and neglect the first; we must take both as forming the ground of the judgment."
(emphasis supplied)
79. The ratio of the said decision was followed in Jacobs5. In the decision in Behrens6 it has been held as under: (QB p. 24) "... This question depends, I think, on the language used by [Cozens-Hardy, M.R.]. It is well established that if a Judge gives two reasons for his decision, both are binding. It is not permissible to pick out one as being supposedly the better reason and ignore the other one; nor does it matter for this purpose which comes first and which comes second. But the practice of making judicial observations obiter is also well established. A Judge may often give additional reasons for his decision without wishing to make them part of the ratio decidendi; he may not be sufficiently convinced of their cogency as to want them to have the full authority of precedent, and yet may wish to state them so that those who later may have the duty of investigating the same point will start with some guidance. This is a matter which the Judge himself is alone capable of deciding, and any Judge who comes after him must ascertain which course has been adopted from the language used and not by consulting his own preference."
(emphasis supplied)
80. The proposition of law has thus been so lucidly expressed in the above decisions, it will have to be held that the additional reasons adduced in our decision in Nagbhai Najbhai Khackar3 directly covers the issue raised before us. One more reason, which weighed with this Court for holding that "bid land" falls within the definition of "agricultural land" as defined under Section 2(1) of the 1960 Act is binding and thus there is no scope to exclude the said decision from its application. Therefore, we reiterate that merely because the question posed for consideration related to the character of "bid lands" after the 1974 Amendment what has been held in paras 20 and 21 mutatis mutandis is in tune with what has now been held by us based on the definition of "agriculture" as well as "land" under Sections 2(1) and 2(17) of the unamended 1960 Act itself."
(emphasis supplied) So in this case, the additional reasons given by the division bench, especially those that lead to the conclusion drawn by it that the rule had not been correctly interpreted by the single judge in the case of Rambaboo Shah (supra), is equally binding. Thus, as on date, the binding ratio is that laid down by the division bench and not that of the single judge in that case though, it is the conclusion of the single judge that has been upheld by the division bench. Once the division bench has offered its own reasoning and that reasoning besides upholding the reasoning of the single judge, gives other and independent reasoning to uphold the ultimate decision and conclusion of the single judge, then it is the entire reasoning of the division bench that is the law declared by this Court. It is that reasoning which constitutes ratio decendi.
Also, the division bench expressly disapproved the law laid down in the case of Rambaboo Shah (supra). Once it has been held that the rule had not been correctly interpreted in that case, it appears the point of differentiation made by the single judge, has been rendered largely academic. Once the rule itself has been held to have been wrongly interpreted, there survives no need to distinguish the facts of this case with that in the case of Rambaboo Shah (supra) or for that matter with those in the case of Guruvendra Singh (supra).
Thus argument advanced by Sri J.P. Pandey on the strength of the judgment of the Supreme Court in the case of Bhavnagar University Vs. Palitana Sugar Mills (P) Ltd and ors 2003 (2) SCC 111, that a small distinction of facts would distinguish the binding precedential value of the judgment, does not require any detailed consideration. While there can be no possible doubt as to the proposition relied by Sri Pandey, once the division bench has held the rule to have been wrongly interpreted in the case of Rambaboo Shah (supra) and upon additional reasoning given by the division bench which is found to be clearly applicable to the facts of the present batch of petitioners, as discussed in earlier part of this judgement, there survives no need or occasion to distinguish the facts of this case with that in the case of Rambaboo Shah (supra) or for that matter with those in the case of Guruvendra Singh (supra).
A candidate who has passed the High School examination with or without grace marks has passed that examination. His pass certificate cannot be qualified or diluted by the Commission so as to deprive him because he passed one subject with grace marks. It may have been open to the Commission to have prescribed a further condition for the purpose of fixing the eligibility of prospective candidates they must have passed Mathematics and Science in that examination, excluding grace marks. However, in absence of any words or expression used either in the Regulations or in the relevant advertisement, such a condition cannot be read into those Regulations or advertisement.
Consequently, all the writ petitions must succeed and are allowed. The Select List 09.12.20016 issued by Secretary, Electricity Service Commission, Uttar Pradesh Power Corporation, Shakti Bhawan, Lucknow U.P., for selection on the post of Technician Grade-2 (Trainee) -Electrical pursuant to the advertisement dated 03.05.2016 would require to be redrawn.
Mandamus is issued to the respondents to consider the claim of the petitioners on basis of marks obtained by them in the written examination conducted by the Commission. Accordingly, if on the basis of the marks secured by them they are eligible for inclusion in the Select List, the same shall be modified and consequential action shall be taken as per law. Let this exercise be completed by the Commission within three months from the date of receipt of a certified copy of this order. Power Corporation shall thereafter take consequential action as per law within the next one month.
All writ petitions are allowed as above. No order as to costs.
Order Date :- 7.10.2017 A. Singh