Rajasthan High Court - Jodhpur
Ashok Kumar Meena vs Rrvpnl Jaipur & Anr on 29 May, 2017
Author: Dinesh Mehta
Bench: Dinesh Mehta
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Civil Writ Petition No. 8649 / 2016
Ashok Kumar Meena son of Shri Brij Lal Meena, aged about 27
years, by caste Meena, resident of Plot No.8, Meena Colony, Near
Sevika Vidya Aashram, Bajriya, District Sawaimadhopur and
presently working as Junior Engineer - 1, in the office of the
Assistant Engineer (B-II), Chopasani Housing Board, Jodhpur
(Raj.)
----Petitioner
Versus
1. Rajasthan Rajya Vidyut Prasaran Nigam Limited, Vidhyut
Bhawan, Janpath, Jyoti Nagar, Jaipur (Raj.) through its secretary
(Admn.).
2. Secretary (Admn.), Jodhpur Vidhyut Vitran Nigam Limited,
New Power House, Jodhour (Raj.)
----Respondent
_____________________________________________________
For Petitioner(s) : Mr. Himmat Jagga
Mr. HL Chouhan
For Respondent(s) : Mr. Sunil Purohit
_____________________________________________________
JUSTICE DINESH MEHTA
Judgment / Order
29/05/2017
IA No. 2678/2017.
Instant application has been preferred by the petitioner, inter
alia praying that the writ petition be disposed of in terms of
judgment rendered by Division Bench of this Court in D.B. Special
Appeal No.317/2016 Hukma Ram Bishnoi vs. The State of
Rajasthan & Ors. Decided on 15.07.2016.
Briefly stating the facts of the present case, Mr. Jagga,
learned counsel for the petitioner contended that the matter is
squarely covered by the aforesaid decision.
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On the other hand, Mr. Sunil Purohit, Learned counsel for the
respondents objected to such assertion and submitted that the
judgment relied upon by the learned counsel for the petitioner
deals with a case of appointment, whereas in the present case
petitioner had been given appointment on the basis of original
mark-sheet, but was not placed at appropriate position in the
seniority list, pursuant to the revised result. He submitted that the
principle laid down by the Division Bench thus, does not strictly
govern the present case.
As the controversy involved in the present case lies in a
narrow compass, with the consent of the parties, the matter was
finally heard.
Succinctly stated, the facts of the present case are that the
petitioner, belonging to the Scheduled Tribe (ST), was declared
successful in the examination of Bechlor of Technology in the
result, which was declared on 31.03.2011, by the Rajasthan
Technical University. The petitioner's mark-sheet issued on
31.03.2011 showed that he has secured 4250 out of 7000 marks.
In response to an advertisement issued by the Rajasthan
Rajya Vidyut Prasaran Nigam Limited, the petitioner submitted an
online application, before the scheduled date i.e. 30.07.2011,
uploading / furnishing his marks as per aforesaid the mark-sheet
issued dated 31.03.2011.
As per the scheduled programme catalogued in the
advertisement, a written competitive exam was held on
08.08.2011, which the petitioner had appeared and cleared.
In the meanwhile, petitioner's marks were upwardly revised,
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pursuant to his application for re-evaluation, which he had already
filed. As a result of the re-evaluation petitioner's marks stood
increased to 4325 and a revised statement of marks dated
17.10.2011 came to be issued.
It is the case of the petitioner that after clearing the written
examination, when he appeared for document verification on
21.10.2011, he carried alongwith him, the revised mark-sheet
dated 17.10.2011 with increased numbers and produced/showed
the same. The petitioner was found eligible and was given
appointment on the post of Junior Engineer-I(Electrical), vide a
common order of appointment dated 30.01.2012, showing
petitioner's name at Serial No.251. The said order indicated that
the names are not in order of merit. Petitioner however joined the
services on 06.02.2012.
Subsequently, the respondents issued a tentative seniority
list on 04.05.2015, showing petitioner's postilion at Serial No.405
in the list. The petitioner immediately submitted a representation
dated 12.05.2015 to the Secretary, pointing out that the
petitioner, at the time of submitting the form, had stated 60.71%
(4250/7000) marks in B.Tech, however said marks had been
revised and petitioner's percentage in B.Tech have increased to
61.78% (4325/7000) and that he be awarded appropriate position
in the seniority list, keeping in view his revised mark-sheet dated
17.10.2011.
The petitioner had filed 3-4 more representations, but no
heed was paid by the respondents. Another seniority list dated
12.05.2016 came to be published, wherein petitioner has been
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shown at Serial No.359. It is not in dispute that the above referred
seniority list had been prepared on the basis of marks obtained in
the B.Tech examination.
On finding his position at Serial No.359 in the Seniority List,
the petitioner made a representation / objection dated 13.06.2016
and again requested that he be placed at correct seniority position
in light of the revised mark-sheet dated 17.10.2011, wherein
petitioner's marks had been revised to 61.78%(4325/7000). The
petitioner's representation aforesaid, came to be rejected by the
respondents, vide order dated 13.07.2016, with the following
observations :-
"As per rules, prescribed at that time, a candidate
must hold a Graduation Degree in Engineering with
60% (5% relaxation to SC/ST/OBC) as on date fixed
for written competitive examination i.e. 28.08.2011.
The candidates appearing in the final year / semester
were also eligible to apply subject to that their result
of final year / semester is declared on or before the
date of written competitive examination and acquire
the minimum prescribed percentage of marks. In case,
any candidate does not fulfill the requisite prescribed
qualification on or before the date of written
competitive examination, his/her candidature shall be
rejected outrightly even though he/she qualifies the
written examination conducted for recruitment".
Assailing the order aforesaid dated 13.07.2016, whereby
petitioner's representation has been turned down by the
respondents, Mr. Jagga, learned counsel for the petitioner argued
that the aforesaid order dated 13.07.2016 is illegal and arbitrary
inasmuch as the respondents have not objectively decided the
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petitioner's representation. He argued that as soon as petitioner's
marks stood revised, pursuant to the re-evaluation and a fresh
mark-sheet dated 17.10.2011 came to be issued, showing his
marks as 4325/7000, the petitioner placed the same before the
Interview Board on 21.10.2011. He added that Interview Board
ought to have considered petitioner's subsequent mark-sheet,
failing which, at least, while preparing the seniority list, the
respondents ought to have considered his marks, as per the
revised result, duly reflected in the subsequent mark-sheet dated
17.10.2011.
Mr. Jagga, relying upon the Division Bench judgment dated
15.07.2016 (supra) argued that as the Division Bench of this
Court in identical circumstances has directed to consider the
certificate of computer proficiency and award bonus marks,
petitioner should also be held entitled to such promum marks. He
relied upon the following observations made by the Division Bench
in para 5 & 9 are reproduced hereinbelow :-
5. The respondents published advertisement dated
28.09.2012 for appointment in the district police and
the R.A.C. Battalion. The last date for applying was
06.11.2012. The essential condition of eligibility
prescribed in the advertisement was was secondary
school qualification or class-IX pass or equivalent from
a recognized school and for the latter class-VIII pass
from a recognized school or Board. The note appended
to it provided that those who had appeared at the
qualifying examination and results were awaited could
also appear subject to their producing the pass
certificate at the time of physical efficiency test. The
appellant indisputably possessed the minimum
eligibility qualification before last date for applying.
The advertisement also provided for special additional
qualifications of N.C.C., Homeguard and Computer
Proficiency. A maximum of two bonus marks could be
awarded to those possessing the additional special
qualification of proficiency in computers. The essential
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eligibility and special additional qualifications are
entirely different concepts and have to be viewed
separately. While there can be no relaxation with
regard to the former except to the extent that the
advertisement may prescribe, the same rigidity cannot
be applied to the stipulation for special additional
qualifications especially when the appellant had
admittedly appeared at the RS-CIT examination before
the date of physical efficiency test and had submitted
proof of the same.
9. "The Aforesaid discussion satisfies us to hold that
the appellant has wrongly been denied consideration
for grant of bonus marks for his special additional
qualification of computer proficiency RS-CIT under the
advertisement. The respondents are therefore required
to consider his candidature for grant of bonus marks for
the same in accordance with law. Let the same be done
within six weeks from the date of receipt and / or
production of a copy of this order and appropriate
reasoned order be passed within the same period. The
order under appeal is set aside. The appeal is allowed".
Mr. Sunil Purohit, learned counsel for the respondents on the
other hand, contended that the Division Bench judgment cited by
counsel for the petitioner is not applicable in the facts of the
present case; inasmuch as the Division Bench in the aforesaid
case was concerned with the awarding of bonus marks in relation
to the appointment of the candidate and in the background of
those facts, this Court has held that while considering the
additional qualification of the incumbent, the Appointing Authority
is required to take into consideration the certificate, even if issued
subsequently. He submitted that the cases of appointment deal
with the substantive right of the citizen, in which some relaxation
can be given, whereas in the present case it is only a case of
seniority; and that the law laid down in the judgment aforesaid
cannot help the petitioner, particularly in wake of Note No.2,
appended with condition No.2 of the advertisement.
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He has also raised an objection of delay & laches and
contended that the petitioner if felt aggrieved, ought to have
taken up his legal recourse in the year 2012 itself, when he was
given appointment. In light of these submissions, the argued that
no relief can be granted to the petitioner.
Mr. Jagga, in rejoinder submitted that the petitioner can
neither be alleged of delay nor can he be non-suited on the
ground of acquiescence, inasmuch as before preparation of the
final seniority list, the petitioner had lodged his objection on
12.05.2015, pursuant to the tentative seniority list dated
04.05.2015. Thereafter, when the subsequent seniority list dated
12.05.2016 came to be issued, he had again made a
representation, which representation has been rejected vide
impugned order dated 13.07.2016; giving cause of action to the
petitioner, for which, he has filed the present writ petition.
I have heard learned counsel for the parties and perused the
material available on record. Delving upon the preliminary
objection of Mr. Purohit, regarding the delay, laches or
acquiescence, suffice it to state that undeniably, the petitioner had
placed the revised mark-sheet dated 17.10.2011 before the
Interview Board on 21.10.2011. A look at the appointment order
reveals a stipulation, indicating that the same is not in conformity
with the order of seniority. Nor it is the case of the respondents
that the petitioner was made aware about his seniority position at
the time of appointment. No sooner did the petitioner come to
know of the first provisional seniority list, than he raised an
objection and made a representation to consider his subsequent
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mark-sheet dated 17.10.2011. Petitioner has been pursuing his
cause with the respondents, until his request finally came to be
turned down, vide order dated 13.07.2016.
This being the position, the petitioner cannot be held
indolent, as he has been pursuing his cause by way of making
representation and the occasion for him, to take legal recourse,
has arisen, only on rejection of his representation on 13.07.2016.
In view of this factual backdrop, the petitioner can neither be
held guilty of delay and laches nor can he be thrown out, on
account of acquiescence.
Coming to the merits of the case, the petitioner's case is
though not directly covered of the Division Bench judgment, so
strongly relied by Mr. Jagga, however the principle laid down by
the Division Bench of this Court, enlightens his path.
It lays down that once the candidate clears essential
eligibility for the purpose of securing appointment, for the special
additional qualification, the parameter to be adopted cannot be
stringently followed and a lenient view is required to be taken. The
said judgment, is however, not an authority on the issue as to
whether the subsequent mark-sheet, issued pursuant to the re-
evaluation would relate back to the date of result / the issuance of
the original mark-sheet.
If the facts of the present case are examined from this
perspective, this Court finds that the petitioner's result was
declared on 31.03.2011, and petitioner's marks were shown to
be 4250, and subsequent thereto and in pursuance of his
request for re-evaluation, his result was revised, making his
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marks to be 4325, as evinced by the mark-sheet dated
17.10.2011.
In considered opinion of this Court, once the result has
been revised and new mark-sheet has been issued, the earlier
mark-sheet becomes non-est from its inception and stands
substituted for all purposes. As such the subsequent mark-sheet
pursuant to revised result shall prevail and the result of the re-
evaluation, though declared on 17.10.2011, whould relate back
to the date of the original result.
In this regard, a reference may be made of the Division
Bench judgment of Punjab & Haryana High Court in the case of
Thapar Institute of Engineering and Technology vs. Anupama
Arya (14.12.1989 - PHHC) MANU/PH/0508/1989 particularly
para 5 thereof, which is reproduced for ready reference :-
5. The learned Single Judge has examined all the
contentions raised by the parties in great detail. He
referred to the Division Bench judgments in Lalit Taor
v. Nagpur University, Nagpur and Ors. A.I.R. 1286
Bom. 255 and Ku. Sadhna v. Bikram University,
Ujjain and Ors. MANU/MP/0041/1986. These
authorities clearly lays down chat as a result of
revaluation if there is any increase or decrease in the
original marks, the same are binding on the students.
The marks obtained as a result of revaluation is the
final marks sheet, The learned Single judge has
rightly come to the conclusion that the marks
obtained as a result of revaluation have to be taken
into consideration for preparing the final merit list.
We respectfully agree with the view taken by the
learned Single Judge In this behalf. Counsel for the
appellant could not. successfully challenge the
correctness of the reasoning given by the learned
Single Judge, which is fortified by two High Courts.
No judgment to the contrary was cited at the hearing
of the case The counsel for the appellant repeatedly
said that it will cause great inconvenience if the
revaluated marks (which marks sheet has been
received by the candidate after the last date of
submission of applications) are taken into account We
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are not impressed by this argument The career of a
student depends upon the percentage of marks
received by him in examination. If there is any
mistake in the original marks sheet and the same has
been corrected as a result of revaluation, the same
has to be given effect to. The valuable rights of a
student cannot be sacrificed merely because some
inconvenience is caused to the appellant-Institute.
In the present case petitioner was earlier awarded 4250
marks (60.71) and his result stood revised taking him marks to
a new height, i.e. 4325 (61.78%). The petitioner, in any manner
cannot be held responsible for the fault, which on the contrary,
lies with the University. As such for the purpose of arriving at
merit or for considering petitioner's candidature, the marks
obtained by him in revised result ought to have been
considered; particularly when the petitioner was having his
mark-sheet dated 17.10.2011, handy with him, while appearing
for document verification, on 21.10.2011.
In this regard, it would be apt to go though some of the
conditions of the advertisement, which deal with educational
qualifications and merit. It would be worthwhile to reproduce
relevant part of the educational qualification and notice
appended thereto.
2. Educational qualification
Name of Post Educational Qualification
(as on date fixed for written competitive examination)
Junior Engineer-I (Elect.) The candidate must hold a Graduation Degree in Engineering,
with 60% marks in aggregate / AMIE with 55% marks in aggregate
in Electrical / Electrical & Electronics / Power Systems & High
Voltage / Power Plant Engineering from a University / Institution
established by Law in India or a Degree of a Foreign University or
Institution declared by the competent authority equivalent to a
Degree in Engineering, of a University established by Law in India.
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Note (1) :- ---------
Note (2) :-The candidates appearing in the final year/ semester
of Graduation Degree in Engineering / AMIE may also
apply provided that their result of final Year /
semester is declared on or before the date fixed for
written competitive examination and they acquire the
minimum prescribed percentage of marks in
Graduation Degree in Engineering / AMIE.
There is yet another relevant Clause 6, Sub clause B
whereof is relevant for the purpose of present controversy and
the same is reproduced hereinfra :-
B. 10% weightage shall be given to the marks obtained by
the candidate in Graduation Degree in Engineering / AMIE
examination as per following slab :
S.No. % of Marks of Graduation Degree in Weightage
Engg./AMIE Examination
(I) 61 & 65 2
(II) 66 & 70 4
(III) 71 & 75 6
(IV) 76 & 80 8
(V) 81 & above 10
A closer scrutiny of the above referred clauses of the
advertisement reveals that no such note is appended to clause
6-B of the advertisement, dealing with preparation of merit list
as available in the Note No.2, appended with the condition No.2
relating to the educational qualification. A conjoint reading of
condition No.2 and condition No.6 of the advertisement reveals
that as far as Educational qualification is concerned, a note in
the form of note No.2 has been stringed, stipulating that those
candidates can apply whose result of final year is declared on or
before the date fixed for written competitive examination and
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who acquire the minimum prescribed percentage of marks in
Graduation Degree in Engineering / AMIE.
It is not in dispute that the petitioner's result was declared
on 31.03.2011, before the scheduled date of written
examination viz. 08.08.2011 and in his first mark-sheet, he had
secured more than the minimum qualifying marks, (60.71%)
and as such on the date of holding the written examination, the
petitioner had cleared the first barrier of qualification having
secured the qualifying marks. Having climbed the first ladder,
then comes the stage of preparation of merit list, for which there
is no such condition like the note No.2, appended with clause 2
Clause No.6 of the advertisement, dealing with the preparation
of merit list simply provides that "10% weightage shall be given
for the marks obtained by the candidate in Graduation Degree in
Engineering / AMIE examination". A bare reading of the
Condition No.6, Clause B goes to show that this clause uses
expression, "marks obtained by the candidate in Graduation
Degree". In wake of such expression, this Court is of the firm
view that the petitioner's revised marks should be reckoned,
applying the principle, laid down by the Division Bench of this
Court.
This Court is of the firm view that securing 60% marks,
being an educational qualification is an essential eligibility
criterion; while securing percentage over and above the
minimum qualifying marks, is akin to the special additional
qualification, which entitles a candidate for additional weightage
or bonus marks. For the purpose of determining special
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additional qualification, as held by the Division Bench, in the
case of Hukma Ram Bishnoi (Supra), such rigidity as applicable
in the essential eligibility criterion cannot be maintained.
For the reasons aforesaid, this Court has no hesitation in
holding that the petitioner's revised and enhanced marks i.e.
4325(61.78%) as shown in the mark-sheet dated 21.10.2011,
ought to have been taken into account by the respondents, at
the time of preparation of merit list, according to which the
petitioner was entitled to 2 weightage points.
The writ petition is allowed.
The impugned order communication No.263 dated
13.07.2016 is quashed and set aside. The respondents are
directed to consider petitioner's revised mark-sheet dated
17.10.2011 and place him at appropriate position in the seniority
list, of-course after awarding additional weightage or bonus
marks, to which he is entitled. The needful exercise be done
within a period of eight weeks from today.
(DINESH MEHTA), J.
Himanshu/-15