Himachal Pradesh High Court
Ravinder Singh vs Union Of India & Others on 16 July, 2019
Bench: V. Ramasubramanian, Anoop Chitkara
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA .
CWP No. : 1616 of 2018
Order reserved on: 08-07-2019
Date of Decision : 16th July, 2019
____________________________________________________________ Ravinder Singh ...Petitioner.
Versus
Union of India & others
to ...Respondents.
____________________________________________________________ Coram:
The Hon'ble Mr. Justice V. Ramasubramanian, Chief Justice. The Hon'ble Mr. Justice Anoop Chitkara, Judge.
Whether approved for reporting?
For the petitioner : Mr. Anil Chauhan, Advocate, for the petitioner.
For the respondents : Mr. Rajesh Kumar Sharma, Assistant Solicitor General of India.
____________________________________________________________ Anoop Chitkara, Judge.
The petitioner herein, seeks a mandamus for setting aside the rejection slip (Annexure P-5), issued by the respondent No. 3. In the interim, he had sought a direction to allow him to sit in the written examination for the post of Soldier (General Duty) (All arms), which was scheduled to be held on 29th July, 2018.::: Downloaded on - 29/09/2019 00:50:33 :::HCHP 2
BRIEF PRECLUDE:
2. In the month of April, 2018, the respondent .
No.3, issued an advertisement, seeking recruitment to various positions, including Soldier (General Duty) (All arms). The educational qualifications, age and physical standard for the Soldier (General Duty) (All arms) were given as follows:-
4. Education Qualification, Age & Physical Standards are given Below:-
Sr. Catego Educational Qualification Age Ht Wt Chest No ry (Cms) (Kg (Cms) )
(a) Soldier (I) Matric with 45% marks in 17½-21 163 48 77/82 General aggregate (main subjects) and years Duty 33% marks in each subject. (Between (Sol GD) from 01
(ii) No stipulation of Oct 1997 percentage required if higher to 01 qualification i.e. 10+2 and April above. 2001)
(iii) Candidates passing 10th in Grade System will have minimum D Grade in each subject and overall aggregate C-2 Grade or 4.75 pts.
3. Vide official communication dated 9th February, 2018, which has been placed on record by the learned Assistant Solicitor General of India, the following clarifications, with regard to Educational qualifications for Soldier (General Duty) (All arms) were made:-
::: Downloaded on - 29/09/2019 00:50:34 :::HCHP 3"3. It is confirmed that for SOL(GD), Class 10 pass with 33% in each subject and 45 % in aggregate is mandatory. No percentage is considered in case the .
candidate has passed in higher qualification i.e. 10 +2 and above.
4. It is also clarified that the percentage waiver for candidates having passed in higher qualification is applicable only for the aggregate marks in class X but 33% marks in individual subject is mandatory. "
4. By means of the reply of the respondent No.3, an office memorandum is placed on record vide (Annexure R-1), which relates to Soldier (General Duty), and it reads as follows:-
"63. Sol (GD). Educational qualification for Sol (GD) is Matric/10th/SSLC and equivalent with minimum 45 % marks in aggregate (minimum D grade in indl subject and over all aggregate of C-2 grade or 4.75 pts for Bd with Grading System) and minimum 33% Marks in each subject studied at Matric/10th/SSLC level, without mentioning any specific subjects. It is clarified vide IHQ of MOD(Army) letter No. 62531/Rtg 5 (OR) (A) dated 01 Feb, 2002 that any candidate, who has been declared Matriculate/10th class pass with or without English subject by the recognized Educational Board, is eligible for Soldier General Duty category provided he meets other laid down Qualitative Requirements. Educational qualification for Sol (GD) (Adivasi/ST) will be Class VIII pass. Dispensation in education standard is granted to various regions/classes/communities vide MP Dte letter No. B/10133/MP-3 dt 09 Apr 13 and valid for a period of three years from 01 Apr 13 to 31 March
16. The existing edn criteria for enrolment of following cats of SOL GD is as follows:-::: Downloaded on - 29/09/2019 00:50:34 :::HCHP 4
(a) SOL(GD) (Adivasi/ST) Cat. Cl VIII Pass. (B) Gen SOL (GD) Cat. CI X with 45 % marks in aggregate and 33% in each subject.
.
Auth: IHQ of MOD (Army) letter No. B/101333/MP-3 (PBOR) dt 31 Mar 10)"
5. The petitioner applied for the post of Soldier (General Duty), vide online application, filled on 18-04- 2018. For the purpose of educational qualification, the petitioner provided matriculation examination certificate (Annexure P-2) and Senior Secondary (10+2) examination certificate (Annexure P-3).
6. Vide communication dated 10th July, 2018 (Annexure P-5), the respondent No.3, rejected the application of the petitioner on the ground that he did not obtain 33% marks in each subject in Matriculation examination. Although, the rejection slip (Annexure P-5), did not specifically mention that 33% marks were compulsory in matriculation examination or 10+2 examination, but bare reading of these communication clarify that it relates to matriculation examination.
7. Feeling aggrieved, writ petitioner approached this Court and filed present writ petition under Article 226 of the Constitution of India. A bench of this Court, vide ::: Downloaded on - 29/09/2019 00:50:34 :::HCHP 5 order dated 13th July, 2018, granted permission to the petitioner, to appear in written examination for the post of .
Soldier (General Duty). It was further directed that the result of the candidate shall be kept in a sealed cover and produced in Court.
8. Vide order dated 17th Sep., 2018, the respondents produced the result, in a sealed cover. A bench of the Court observed that the writ petitioner has passed the said examination. In the interregnum, the respondents were directed to permit the writ petitioner to participate in the process of selection for the post of Soldier (General Duty). It was further directed that the selection and appointment shall be subject to the outcome of the writ petition.
9. On 4th July, 2019, while hearing the matter, the Court observed in the following terms:-
" The Counsel for the petitioner shall get clarifications from his client as to how he appeared for Senior Secondary Plus Two Examination in Session- March 2017 when even according to him, he completed the matriculation Examination in Session- March, 2016."
10. We have heard the learned counsel for the parties. The learned counsel for the petitioner has clarified that the petitioner had appeared in the Matriculation ::: Downloaded on - 29/09/2019 00:50:34 :::HCHP 6 examination in June, 2015. However, he could not pass the Matriculation examination, because he got a compartment .
in Mathematics. He also submits that the 7 th subject was Art, which was an elective subject, and he failed in that examination. His further case is that the candidates, who get compartment in Matriculation, can take admission in 10+1 class and simultaneously clear the compartment in the Matriculation examination. Accordingly, the petitioner had appeared in 10+1 examination, which he had cleared in March,2016, and had simultaneously also cleared compartment in the Matriculation examination.
11. Ld. Assistant Solicitor General of India, did not dispute this fact and even conceded that the candidates who get compartment in Matriculation examination, are entitled to take admission in the next class i.e. 10+1, and simultaneously they can clear the compartment in Matriculation examination. Therefore, the confusion is clear and stands clarified.
12. The main case of the petitioner is that he could not pass the, 'Art' examination, which was an elective subject. He further states that it would not be necessary to ::: Downloaded on - 29/09/2019 00:50:34 :::HCHP 7 pass an elective subject and even if he had not appeared in the elective subject or remained absent, it would have .
made no difference. He has placed on record the photocopy of the 1st Matriculation certificate, wherein, he got compartment in Mathematics. A bare perusal of this certificate reveals that the only objection raised by the Himachal Pradesh Board of School Education was his compartment in Mathematics. There is no mention of the fact of his getting 'fail' in Art. The petitioner cleared the compartment in Mathematics and a pass certificate was issued to him, which is Annexure P-2. In this certificate, he has scored more than 33% marks in all main subjects i.e. English, Mathematics, Hindi, social Science, Science & Technology and Sanskrit. However, in Art he scored 32% marks out of 100. The details of his marks are reproduced as under:-
"This is to certify that RAVINDER SINGH Father's Name Shri SHUPA RAM Mother's Name Smt. BHAJO DEVI Born on 12-01-2000 (Twelfth January Two Thousand) has passed the Matriculation Examination of this Board from Govt Sr. Sec School, BAKRAS (School Code.3884) District SIRMOUR and placed in THIRD Division.::: Downloaded on - 29/09/2019 00:50:34 :::HCHP 8
DETAILS OF MARKS Sr. No. Subject/s Marks obtained Maximum Marks .1 English 40 100 2 Mathematics 43 100 3 Hindi 40 100 4 Social Science (His. Civ. Geog.) 46 100 5 Science & Technology (Phy. Chem. Life 55 100
Sci. W/P 38/17 6 Sanskrit 47 100 7 Art (Elective) W/P 14/18 32 100 8 Grace marks for Division Improvement, -
if any Total- Three Hundred and Three only 303 700 It reveals that against Sr. No. 7- Art (Elective) is written.
Therefore, even as per the Himachal Pradesh Board of School Education, subject of Art was an elective subject and to get pass marks of minimum 33% was not a prerequisite for elective subject.
13. The respondents, vide clarification dated 09-02- 2018, have ruled that minimum 33% marks in each subject, are mandatory in class 10 th. Whereas the question for consideration before this Court is that, is it mandatory to get minimum 33% marks in each subject to get pass certificate of Matriculation examination, or such a condition is not mandatory for an elective subject. Our answer to this question is that the certificate issued by Himachal Pradesh Board of School Education clarifies this point, wherein they ::: Downloaded on - 29/09/2019 00:50:34 :::HCHP 9 have mentioned 'Art' as an elective subject and asserted that even when the petitioner did not get 33% pass marks .
in the elective subject of Art, he was declared pass.
Therefore, what follows is that it was the choice of the student to take or not to take the elective subject. Simply because, the petitioner chose to study one additional subject and in that endevour, he failed to get pass marks in elective subject, cannot be a disqualification, rather whatever marks he got, on this count, were over and above the minimum requirements.
14. Resultantly, the elective subject(s) in the Matriculation examination, cannot be treated at par with the main subjects. Thus the clarification issued by respondents, vide letter dated 9th Feb., 2018 No. 62531/Rtg B(A) shall not apply to elective subject of Class X.
15. The next contention of the counsel for the petitioner is that at the time of advertisement, this condition of minimum 33% was not mentioned. Now in view of the findings given by us, firstly this contention does not arise. Secondly this advertisement was issued in April, 2018, whereas the clarification dated 9 thFeb.,2018 was ::: Downloaded on - 29/09/2019 00:50:34 :::HCHP 10 circulated vide letter dated 8thMarch, 2018. Therefore, this contention is contrary to the factual matrix.
.
16. It would be apposite to point out that as per the advertisement, minimum qualification was 33% in each subject and 45% aggregate in Matriculation Examination.
But this minimum condition is not applicable, for the candidates, who have passed a higher qualification, i.e. ten plus two (+2) and above. The petitioner herein, has placed on record, his certificate of Senior Secondary examination, (Annexure P-3), in which, he not only got pass marks, but also made a substantial improvement over his Matriculation score and scored 75.8% marks in Senior Secondary examination, with distinction in as many as three subjects. This performance indicates that the petitioner is an academically meritorious student.
17. In view of the above reasoning, we allow this petition, the order of rejection dated 10 th July, 2018 (Annexure P-5), issued by respondent No. 3, is quashed and set-aside. The respondents are directed to reconsider the case of the petitioner for appointment to the post of Soldier (General Duty), on the ::: Downloaded on - 29/09/2019 00:50:34 :::HCHP 11 same terms and conditions, which were applied to the candidates appointed vide advertisement (Annexure P-6), .
by placing him in the same batch. The writ petition is allowed in the above terms and conditions.
18. All pending applications, if any, also stand closed.
(V. Ramasubramanian)
Chief Justice
r (Anoop Chitkara)
Judge
July 16th, 2019
(NK)
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