Kerala High Court
M. Sebi Louis, S/O. M.T. Louis, Telecom ... vs Union Of India (Uoi), Represented By The ... on 3 September, 2003
Author: A.K. Basheer
Bench: A.K. Basheer
JUDGMENT
Jawahar Lal Gupta. C.J.
1. The petitioners complain that the Central Administrative Tribunal, had erred in holding that "the applicants who have been affected because of the highly descriptive and non-objective questions in Mathematics and Physics deserve to be awarded suitable additional marks by way of moderation . . ." Is it so? This is the primary issue that arises for consideration in the petition, viz., O.P. No. 39672/2002. The relevant facts may be briefly noticed.
2. The petitioners as well as respondent Nos. 4 to 11 are working as Telecom Technical Assistants. The next higher post is that of Junior Telecom Officer. The appointment to the post of Junior Telecom Officer is regulated by Junior Telecom Officers' Recruitment Rules, 1996. Under the Rules, 50% posts have to be filled up by direct recruitment. 35% posts fall to the share of the persons who pass the qualifying screening test The remaining 15% are filled up by competitive selection from amongst the Telecom Technical Assistants and persons belonging to the Group C service. In the present case, the controversy centers on the examination for appointment against the 35% posts.
3. The candidates have to appear in a qualifying screening test. The syllabus etc. was laid down by the Department vide Instructions, a copy of the relevant extract of which has been produced as Ext. R4 (2). It was inter alia provided that the candidates would appear in "one paper of 100 marks of 2 1/2 hours' duration. The qualifying marks will be 40 for open category and 33 for Scheduled Castes/Scheduled Tribes. Questions will be objective type except in the paper of English." The question paper was consisting of 4 parts viz. Part A - English; Part B - General Mathematics; Part C - Physics and Part D - Departmental Practice. Parts A and B were to carry 20 marks each. Parts C and D were allocated 30 marks each.
4. On November 30, 1999, the Department issued a notification indicating its intention to hold the test. Sometime later, another notice dated January 6, 2000 was issued. The candidates were asked to submit their applications. On March 8, 2000, the Department issued a Circular notifying that the examinations shall be held on April 30, 2000. The other conditions, as noticed above, were also stipulated in that notice. A copy of this notice is on record as Ext. P2. The test was held. The result was announced on September 19, 2000. The petitioners claim that they had secured the requisite %age of marks and qualified the test.
5. After the test, some of the candidates who had already taken their chance approached the Central Administrative Tribunal "through a petition under Section 19 of the Administrative Tribunals Act, 1985. We are informed that the petition was filed on June 6, 2000. A copy of this petition has been shown to us during the course of the hearing. A perusal of this petition indicates that the basic allegation was that a portion of the questions was "out of syllabus." This required more than the allotted time of 2 1/2 hours. The "standard of questions asked were way beyond their capacity and educational qualifications to answer. The question paper was as tough or more than that of a competitive examination for highly qualified hands." The matter was taken up with the Union. A representation was submitted on May 10, 2000. The respondents had failed to take any action on the representation. On various grounds, it was prayed that the test held on April 30, 2000 be declared as null and void and that the authorities be directed to conduct the test afresh.
6. The matter was considered by the Tribunal. It was decided vide order dated April 11, 2002. The Tribunal inter alia observed as under
1. We find that "the question papers for Mathematics (Part-B and Physics (Part-C) forming part of A-4 contain large number of questions which are different from the objective mode both in their form and content. The questions asked are at variance with the concept of objective mode as it is understood by us." (Paragraph 9).
2. There is "some force in the applicants' contention at least with reference to the qualifyingscreening test for Physics and Mathematics to the effect that the questions were substantially non-objective which prejudicially affected the candidates with the educational qualification and intellectual capabilities of the applicants' category. . ." The representation submitted by the Union has not been rejected. We "agree that it deserves to be considered seriously and the official respondents would do well to take a comprehensive view of the whole matter and take appropriate steps to remedy the hardships as discussed above."
3. In this situation, "we would be failing in our duty if we do not express our strong conviction that if the results of the second qualifying screening test (35%) held on 30-4-2000 are decided and processed and published, the applicants who have been affected because of the highly descriptive and non-objective questions in Mathematics and Physics deserve to be awarded suitable additional marks by way of moderation, as determined by the competent authority in that regard."
7. After making the above observations, the Tribunal disposed of the petition with a direction to the official respondents to consider the representations) after due consideration of "all the relevant facts." It further directed that "the official respondents shall pass appropriate orders thereon regarding the grant of grace marks as indicated above or any other relief as the competent authority deems it fit to grant within a period of two months from the last date for receipt of representation from the applicants."
8. In pursuance to the above directions given by the Tribunal, the matter was considered by the competent authority. On July 10, 2002, the Chief General Manager, Telecommunications, Kerala Circle passed an order rejecting the representation. A' copy of the order has been produced as Ext P5. A perusal of the order shows that the facts and the contentions as raised in the representations were considered at length. Specific findings were recorded. It was inter alia held that 47.21% candidates had passed the examination. The questions were not too difficult. The questions were within the prescribed syllabus and these were not time consuming. The contention that the question paper was not objective was wrong. Thus, it was held that no ground for granting any additional marks was made out.
9. After the receipt of this order, some of the persons who had approached the Central Administrative Tribunal filed a petition under the Contempt of Courts Act, 1971 read with Section 17 of the Administrative Tribunals Act It was registered as C.P(c) No. 66/2002. A copy has been shown to us during the course of the hearing by the counsel for the respondents. A perusal of this contempt petition shows mat in paragraph 4, it was alleged that the order dated July 10, 2002 "was highly contemptuous of this Hon'ble Tribunal in that, it not only denied grace marks or other relief to the parties to above O.A., but also committed a further contempt of sitting in Judgment of the specific finding of this Hon'ble Tribunal ....." Along with this petition, a draft charge was also filed. It was alleged that Mr. P.P. Ramachandran, the Chief General Manager, had committed contempt as "he has not only not granted any grace marks or any other relief to the parties to the above O.A. but also committed further contempt of sitting in judgment of the specific finding of this Hon'ble Tribunal in the order dated 11-4-2002 in O.A. 616/2000." Thus, it was prayed that the respondent in the contempt petition be summoned and punished for having acted in disobedience of the direction.
10. The contempt petition was considered by the Tribunal. On November 7, 2002, the Tribunal passed an order, a copy of which has been produced as Ext. R4 (7) with the counter affidavit In this order, it was inter alia observed that the attitude of the respondent "prima facie appears to be contumacious and defiance of the Tribunal's direction and it appears to be a case where action under the Contempt of Courts Act should be taken against him. However, in view of the statement in the affidavit that in spite of the affidavit (if) the Tribunal finds that the action amounts to contempt he tenders his apology, we give Sri. P.P. Ramachandran another opportunity to rectify to rectify the mistake committed by him and to pass an appropriate order on the representation of the applicants within two weeks." With these observations, the case was adjourned to November 25, 2002.
11. On November 18, 2002, the Chief General Manager issued another order by which it was decided to "award 8 marks by way of grace marks for the candidates who have appeared in the screening test held on 30-4-2000 for promotion to ITO Cadre under 35% Departmental Qualifying Quota, but could not come out successful as per the result declared vide this office Memo No. Rectt/30-6/99 dated 19-9-2000. On the basis of this order, a supplementary result shall be notified immediately. Consequently this office orders dated 10-7-2002 issued in pursuance of judgment in O. A. 616/00 and subsequent orders issued on the related subject in other connected OAs stand cancelled.
12. Aggrieved by the order, the petitioners, who were not parties before the Tribunal, have approached this Court through this petition under Article 226 of the Constitution. They allege that the instructions issued by the Department lay down that a candidate has to secure 40 marks to pass the test. The Tribunal had directed that there should be moderation or award of grace marks despite the fact that no such prayer had been made. There is no provision for the grant of grace marks. The Tribunal did not have the jurisdiction to relax the prescribed standard or vary the minimum qualifying marks. Thus, they pray that the order passed by the Tribunal be quashed and that the Court may give such other direction as it deems fit.
13. In this petition, the persons, who were the petitioners and respondents before the Tribunal, have been impleaded as parties. Subsequently, various other miscellaneous applications were also filed. As a result, besides the six applicants before the Tribunal, those who had approached this Court were impleaded as respondents. Thus, respondent Nos. 4 to 21 have been brought on record as private parties.
14. Counter affidavits have been filed on behalf of the respondents. On behalf of the official respondents, the counter affidavit has been filed by the Assistant General Manager (Recruitment). It has been inter aha averred that the order dated November 18, 2002 (Ext. P6), was issued by the Chief General Manager, Telecom in obedience to the order dated November 7, 2002 passed by the Tribunal. The "grace marks were marks were awarded on the basis of clear instructions from the Hon'ble Central Administrative Tribunal." The respondent is hesitant to make any comments on merits. It has been averred that "no comments regarding the contention of the petitioner that the direction of the Tribunal to award grace marks is clearly in excess of jurisdiction and clearly illegal." It has been further stated that there are no instructions regarding the grant of grace marks in Departmental examination. Despite these averments, it has been prayed that the writ petition be dismissed.
15. Another counter affidavit has been filed by respondent Nos. 4, 5 and 7. They were the petitioners before the Tribunal. Besides controverting the claim as made by the petitioners, they have placed on record various question papers indicating the format followed in different States and also to demonstrate that the questions as posed during the impugned test were not objective. They maintain mat the variations were not minor, but, substantial. Thus, "in the light of annexure A5 representation requesting for grace marks and the 4th prayer in the O.A., the Tribunal was perfectly within its jurisdiction to have issued the P1 order." On these premises, the respondents maintain that the writ petition deserves to be dismissed.
16. A separate counter affidavit has also been filed by respondent No. 15. It need not be noticed in detail as it is broadly on the same lines as that filed by respondent Nos. 4, 5 and 7.
17. The writ petition was posted for hearing before a Bench of this Court on January 6, 2003. It was admitted and an interim direction staying the operation of the order passed by the Tribunal was also given. We are informed that SLP (Civil) No. 12728/2003 filed by M/s. Peter A.O. and another against the interim order was dismissed by their Lordships of the Supreme Court vide order dated August 1, 2003.
18. Another fact, which deserves mention here is that in pursuance to the order passed by the Tribunal on April 11, 2002 and the order dated November 18, 2002 passed by the Chief General Manager, the revised result was issued. As a result, the candidates who had failed to secure 40% marks were awarded grace marks and were declared to have passed the test. Some of the persons belonging to this category claimed that they were entitled to be sent for training for promotion to the posts of Junior Telecom Officers. Having not been so deputed on account of the interim stay order, they have approached this Court through a petition under Article 226 of the Constitution viz. O.P. No. 12264 of 2003. They pray that a writ of mandamus be issued directing the respondents to send them for training for promotion to the posts of Junior Telecom Officers. They also pray that the seniority list of Telecom Technical Assistants who have qualified the test be prepared and they be deputed for the training course. They also seek a declaration that the decision dated November 18, 2002 regarding the award of grace marks "is an independent decision and the same cannot be divulged (deviated) without any reasons."
19. The claim as made in this petition has been controverted by the respondents by filing a counter affidavit. The factual position as noticed above has been explained.
20. Learned counsel for the parties have been heard.
21. On behalf of the petitioners, Mr. Govinda Swami has contended that the Tribunal could not have observed that the grace marks have to be awarded. It was not entitled to vary the qualifying standard prescribed, especially when there was no such specific prayer made by the parties before it. Thus, he contends that the order dated April 11, 2002 a copy of which has been produced as Ext. P1, deserves to be quashed. He further submits that if the order passed by the Tribunal is set aside, all consequential actions would be automatically annulled.
22. The claim as made on behalf of the petitioners has been controverted by the learned counsel for the respondents viz. M/s. Ramakumar and Jnanasekaran. It is contended that the action is in strict conformity with law. The order does not suffer from any legal infirmity. The Tribunal had not directed the award of grace marks. The order passed by the Tribunal is, thus, legal and deserves to be sustained. It has also been contended mat the order passed by the Tribunal on November 7, 2002 did not embody any threat to the authority. It was not under the pressure of the order that it had agreed to grant grace marks to the candidates. It has been further submitted that the petitioners have made wrong averments in the petition. Reference has also been made to the question paper to show that the questions in the subjects of Physics and Mathematics were not objective but descriptive. Thus, the learned counsel have submitted that the writ petition deserves to be dismissed.
23. The short question that arises for consideration is - Is the order April 11, 2002 as passed by the Tribunal, a copy of which has been produced as Ext. P1, legal and valid?
24. Admittedly, there was an open invitation to the candidates to appear in the qualifying screening test. In response to the notice, 1326 candidates had actually appeared. Out of these, 626 candidates had qualified. All of them had taken the same test and answered the same question paper. All had been treated alike. Still further, it has not been shown that the questions as posed in the question paper were not within the syllabus as notified by the Department. It is the admitted position that the candidates belonging to the Scheduled Castes and Scheduled Tribes had to secure a minimum of 33% marks. The others had to secure 40% marks. More than 47% candidates having qualified the test, it cannot be said that the questions were too difficult or that the test was unfair.
25. Another fact, which deserves mention, is that no rule or instructions have been placed on record to show that there is any provision for the grant of grace marks. Despite this, the Tribunal had directed the authority to "take appropriate steps to remedy the hardships." In coming to this conclusion, the Tribunal has referred to the examination conducted in the Gujarat circle. On this basis, it was held that the questions in the subjects of Physics and Mathematics "were substantially non-objective which prejudicially affected the candidates .. ." It is the admitted position that the tests are conducted by different authorities in different circles independently. The persons working in the State of Kerala were not competing with those in me State of Gujarat or any other place. They were not appearing in -a competitive test. They had to merely secure the qualifying marks to become eligible for promotion to the post of Junior Telecom Officer. In this situation, the award of grace marks can unduly help the person who has failed and adversely affect the interests of a junior who has actually qualified.
26. Learned counsel for the respondents have contended vehemently that the Tribunal had not given any direction for the award of grace marks. It had only directed the authority to consider and decide the representation of the aggrieved persons.
27. The contention is wholly misconceived. The direction given by the Tribunal in the operative portion of the order was in the following words:
"After due consideration of all the relevant facts, the official respondents shall pass appropriate orders thereon regarding grant of grace marks as indicated above or any other relief as the competent authority deems fit to grant..."
Still further, it deserves notice that on a consideration of the matter, the competent authority had come to the conclusion that there was no justification for the claim of any grace marks. This order was passed by the authority on July 11, 2002. But the passing of this order had unfortunately led to more problems. The respondents in this petition had initiated proceedings for contempt. It was specifically pleaded that the Tribunal's order regarding the grant of grace marks had not been complied with. Still further, the Tribunal had, vide its order dated November 7, 2002, categorically observed that the conduct of the respondent was 'contumacious/ A perusal of the order shows that in the opening paragraph, the Tribunal had observed that "under such circumstances, the Chief General Manager would consider the grace marks to be given . . ." It is, thus, clear that the Tribunal was clearly of the view that the authority was bound to grant grace marks. Could it give such a direction?
28. The material on record clearly shows that there is no rule or law providing for the award of grace marks. Still further, the Department had issued instructions in which minimum qualifying marks had been laid down. This was the bare minimum, which each candidate had to attain so as to be eligible for promotion. The percentage as fixed was 40% for the open category candidates and 33% for the members of Scheduled Castes and Scheduled Tribes. It was not arbitrary. It was not unfair. There was no suggestion that the percentage was too high for a qualifying examination. In fact, the candidates were appearing in a test so as to be eligible for promotion to a higher post They were bound to attain a minimum standard. Those who failed were not entitled to be considered for promotion. The order passed by the Tribunal amounted to a variation of the minimum standard. It had led to a dilution of the minimum standard as laid down by the authority for maintaining a reasonable amount of efficiency in an administration, which is, day by day going down in standards.
29. It is undoubtedly true that the powers of the Tribunal under Section 14 of the Act are vide. Yet, the courts do not enter academic thickets. Matters of departmental examination or the qualifying .4 standard are within the domain of the competent authority. Unless the prescribed standard is wholly arbitrary or incapable of being attained, the courts cannot intervene. In fact, these are matters to be considered by experts. The Courts are not aware of the needs of each department or the post The minimum standard can only be laid down by the competent authority. The direction of the Tribunal in the context of the facts of the present case was clearly beyond the scope of judicial review of a purely administrative order. Thus, it cannot be sustained.
30. There is another aspect of the matter. It has been consistently held by courts that no person can claim relaxation of the prescribed standards as a matter of right. No writ of mandamus can be issued directing the authority to show indulgence. In fact, the power of the Court is normally invoked to ensure compliance with the prescribed norms. Reference in this behalf has been made in the decisions of the Supreme Court in K.V. Rajalakshmiah Setty and another v. State of Mysore and Anr., AIR 1967 S.C.993 and Union of India v. Joginder Sharma, 2002 S.C.C. (L&S) 1111. Thus, it is clear that no mandamus can be issued to direct the authority to relax the prescribed standard. Deviation is frowned upon unless it is totally warranted by proved facts, to the present case, 626 candidates had duly qualified the test. The number was more than the available posts. The persons who have proved their suitability had a right to be considered for promotion. By the dilution of standards, the rights of the successful candidates were adversely affected. The course adopted by the Tribunal was not just and fair. The order clearly caused injustice to the meritorious candidates.
31. Learned counsel for the respondents point out that grace marks had been granted in the past. No such instructions have been produced on the record. However, during the course of the hearing, an order dated July 23, 2003 has been shown to us. This order refers to Writ Petition No. 19124/2C03. The facts of that case are not before us. Thus, no advantage can be derived from this order. Besides that, as pointed out by Mr. Gopinath, there are no instructions providing for the grant of grace marks. In fact, the order of the Government laying down the syllabus etc., clearly shows that the authority has laid down a minimum pass percentage of 40% and 33% for the persons belonging to the open and reserved category respectively. The order of the Tribunal varies the minimum standard as prescribed by the authority. It amounts to rewriting the order of the authority. The action was clearly beyond the scope of 'judicial review' of an administrative order.
32. Faced with the situation, Mr. Krishnamoorthy, learned counsel for the petitioners in O.P.No. 12264/2003 has contended that the order dated November 18/20 of 2002 had been issued by the competent authority. This order has not been challenged. It is not the subject matter of the petition filed by the petitioners in O.P. No. 39672/2002. The authority is bound by this order. It should be directed to implement it.
33. This claim is contested by Mr. Gopinath, who appears for the respondents. He contends that the order was in consequence of the direction given by the Tribunal vide its order dated April 11, 2002. Since the order dated April 11, 2002 is untenable, the consequential order cannot be enforced. He also submits that it was under the threat of contempt that the order was issued. Otherwise, the authority had rejected the claim for relaxation of the prescribed standard by its order dated My 10, 2002.
34. The sequence of events has been noticed above. It is clear that the Tribunal had directed the award of grace marks. This direction was wrong. In any event, the authority, on a consideration of the matter, had found that no ground for granting grace marks was made out. The representation was accordingly declined. At that stage, the contempt petition was filed. By its order of November 7, 2002, the Tribunal had categorically observed that the action of the authority was contumacious. It was given time of two weeks to rectify the error. Clearly, it was under the threat of the contempt that the officer had issued the order. The order was passed in pursuance to the view taken by the Tribunal. Since the basic order passed by the Tribunal on April 11, 2002 has been found to be illegal, the consequential actions cannot remain free from blemish. No ground for the issue of a direction for the implementation of the order dated November 18/20 of 2002 can, thus, be issued
35. It has been contended by the counsel that the facts of O.P. No. 39672/2002 have not been accurately stated. Mr. Govinda Swami, learned counsel for the petitioners, has very fairly submitted that the petitioners were not parties in the proceedings before the Tribunal. They did not have the exact details. Thus, some inaccuracy has inadvertently occurred. However, the claim in the petition is not based on any inaccurate feet. The petitioners have basically challenged the order dated April 11, 2002 as passed by the Tribunal: If this order is annulled, the consequential orders cannot subsist. -
36. On a consideration of the matter, we are satisfied that there was no intentional mis-statement or suppression of any material facts. In fact, the Counsel for the respondents have not even pointed out any inaccurate statement, which may affect the decision. Thus, the petition is not liable to be dismissed on that ground.
37. No other point has been raised.
In view of the above, we allow O.P. No. 39672/2002. It is held that the order dated April 11, 2002 passed by the Tribunal was illegal. Thus, it cannot be sustained. It is consequently quashed. Still farther, O.P. No. 12264/2003 is found to be wholly lacking in merit The order dated November 18/20, 2000, which is sought to be enforced by the petitioners, was not legal. Thus, the Court cannot direct the authority to follow it The petition is, consequently, dismissed. In the circumstances, we make no order as to costs.