Central Administrative Tribunal - Delhi
Chandresh Kumar Tripathi vs The Chairman-Cum-Chief Managing ... on 27 November, 2013
Central Administrative Tribunal Principal Bench, New Delhi O.A. No.3275/2012 MA 2244/2012 & 2245/2012 Order reserved on 24.09.2013 Order pronounced on 27.11.2013 Honble Shri G.George Paracken, Member (J) Honble Shri Shekhar Agarwal, Member (A) 1. Chandresh Kumar Tripathi Age 47 years S/o Shri Mannu Lal Tripathi Junior Accounts Officer In the office of GMTD District Bulandshahar (U.P.) 2. Surendra Kumar, Age 48 years S/o Shri Umrao Singh Junior Accounts Officer In the office of GMTD District Meerut (U.P.) 3. Babu Ram Saini S/o Late Phool Singh Junior Accounts Officer In the office of GMTD District Muzaffarnagar (U.P.) 4. Lalit Babu Sharma S/o Late Dau Dayal Sharma Junior Accounts Officer In the office of GMTD District Agra (U.P.) .Applicants (By Advocate : Mrs. Rani Chhabra) Versus 1. The Chairman-cum-Chief Managing Director (CMD) Bharat Sanchar Nigam Limited New Delhi 110001 2. Director (Finance) Bharat Sanchar Bhawan New Delhi-110001 3. Assistant General Manager (Est.) Office of Chief General Manager UP (West) Circle District Meerut 4. Assistant Director Telecom (D.E.) Department of Bharat Sanchar Nigam Ltd. Dak Bhawan, Sansad Marg, New Delhi. ... Respondents (By Advocate: Shri M.M. Sudan) ORDER
Honble G. George Paracken,M(J) This Original Application has been filed by the Applicants against the order dated 25.04.2012 passed by the Respondents rejecting their claim for grant of grace marks/to declare them successful in the Junior Accounts Officer (JAO for short) Grade Part-II Examination held in 2006.
Brief Facts of the case
2. In the year 2000, the Department of Telecommunications (DOT for short) under the Ministry of Communication, Government of India was corporatised to form BSNL. In DOT, the Telecom Office Assistants (TOA for short) was the feeder post for promotion to the post of JAO for which they were required to pass the prescribed Junior Accounts Officers Examination in terms of Junior Telecom Officers Service Telecommunications Wing (Group C) Recruitment Rules, 1977 which was being held in two parts. Those who were declared successful in Part-I of the said examination were eligible to officiate as JAOs but they were eligible to be confirmed in the said post only after they pass the Part-II Examination. Rule 8 of the said Rules stipulates as under:-
8. Departmental Examination-(1) The Departmental Examination shall consist of two parts, namely, Part I and Part II, and shall be conducted in accordance with such syllabus, and in such manner, and at such time and place, as may be specified by the Director-General from time to time.
(2) Part I of the Departmental Examination shall be common to both the Junior Accounts Officers in the Telecommunication Wing and the Junior Accounts Officers in the Post Wing.
(3)(a) Not printed.
(b) Any person who passes Part II of the Departmental Examination shall be eligible for appointment as Junior Accounts Officer.
3. The instructions regarding the conduct of Departmental Examination for appointment to Junior Accounts Officers Service, Postal Wing, and Junior Accounts Service, Telecommunication Wing have been issued vide D.G., P.&T., letter No.17/1/77-SEA, dated the 6th May, 1977 and it contains particulars like the number of chances, qualifying marks and exemptions in the aforesaid examination which are as under:-
(ii) Number of chances:
A candidate will be entitled to a maximum number of six chances each to appear in Part I and Part II examination. So far as Part I and Part II of the Departmental Examination in respect of two Junior Accounts Officers Services are concerned, the number of chances is subject to the condition that a candidate is not more than 45 years and 48 years of age respectively as on the first day of January of the year in which the Departmental Examination is scheduled to be held. Further, the said number of chances for appearing in either Part I or Part II of the Departmental Examination will be admissible to candidate irrespective of the number of chances he might have already availed of in the Posts and Telegraphs Department or in the Indian Audit and Accounts Department, before the issue of these instructions.
(iii) Qualifying Marks:
The minimum number of marks required to qualify in each Part of the Departmental Examination prescribed for Junior Accounts Officers Service, Telecommunication Wing and Junior Accounts Officers Service, Postal Wing, will be 40% in each subject and 45% in the aggregate, provided that a minimum of 40% is also secured separately in the practical papers answered with the aid of books.
Suitable relaxation of qualifying standards will be made in the case of Scheduled Castes/Scheduled Tribes candidates.
(iv) Exemptions:
(a) Any candidate failing at a Departmental Examination, but passing in any subject with at least 60% of the marks, but where there is more than one paper in any subject viz., theory and practical, with at least 40% of the marks in each paper, and 60% of the marks in the aggregate of the two, will not be required to appear again in the subject at any of the three consecutive Departmental Examinations, if the candidate is otherwise eligible to appear at those subsequent Departmental Examinations.
(b) As regards the candidates who have secured exemption in Book-keeping paper, but have not qualified in the Part I examination as a whole, they will be required to appear afresh in the Book-keeping paper under the new syllabus.
(c ) If a candidate has secured exemption in Papers III and IV (Service Rules) in Part I of the old syllabus, he will also be deemed to have secured exemption in the papers on the Service Rules under the new syllabus as the syllabus is the same under the old and the new schemes.
(d) In Part I of the old syllabus, there are two papers (Theory and Practical) on General Rules and Procedures and two papers (Theory and Practical) on Financial Rules and Procedures. Under the new syllabus, there will be only two papers (Theory and Practical) combining both General and Financial Rules and Procedure. Therefore, the candidate who have secured exemption either in the General Rules and Procedure or Financial Rules and Procedure will be required to appear in General and Financial Rules under the new syllabus. However, if a candidate has secured exemption in both the subjects. General and Financial Rules, then he will be deemed to have secured exemption in the papers on General and Financial Rules under the new syllabus.
4. After the corporatisation, the BSNL notified its own Recruitment Rules, namely, JAO Recruitment Rules, 2001 and it came into force on 31.08.2001. However, the new syllabus according to the said rules were issued only on 12.10.2004. Till then, JAO examination was being held as per the old Recruitment Rules and syllabus. The last Part-I Examination, according to the DOT Rules, was held in the year 2003. Meanwhile, the BSNL, vide their letter dated 09.09.2002, issued detailed guidelines in respect of departmental candidates who had already got exemption in certain papers in JAO Part-II examination conducted by DOT before corporatisation. As they have already been absorbed in BSNL permanently, it was decided to grant them a special relaxation during the transition period for qualifying the remaining papers (as per DOT syllabus) in the JAO Examination Part-II to be held within a specific frame. The relevant part of the said guidelines are as under:-
A2. Candidates who have already passed JAO Part-I and have not qualified in the Part-II examination and with no exemption in any of the papers: Candidates will have to exercise either of the two options viz.
(a) to continue in the existing syllabus (DOT)
(b) to switch over to the new syllabus (I) Candidates who opts to continue in the existing (DOT) Syllabus and mode of examination: They will have to qualify Part-II examination, within a period of two years and with two attempts. If a candidate is unable to clear Part-II within two years, he/she will have to switch over to new syllabus and to qualify the screening test as to appear in the main examination.
(II) Candidates who opt to switch over to new scheme of exemptions:- Candidates will be given exemption from appearing in the screening test. They will also be exempted from appearing in papers in the new system of examinations, now proposed which are equivalent to the papers he had already cleared in Part-I. These exemptions will be valid for two attempts within a period of 2 years. If the candidate is unable to qualify in the two attempts also, he/she will have to clear the screening test, in the newly proposed mode of examination so as to appear in the main examination.
A3. Candidates who have already passed JAO Part-I and have not qualified in the Part-II examination but are exempted from appearing in certain papers: Candidates will have to exercise either of the two options viz.
(a) to continue in the existing syllabus (DOT)
(b) to switch over to the new syllabus
(i) Candidates who opts to continue in the existing (DOT) Syllabus in such case the candidate would clear the balance papers, within two years, maximum of two attempts will be allowed. If the candidates is unable to clear the balance papers within the stipulated attempt, he/she will have to switch over to new syllabus and to the screening test to appear in the main examination.
(ii) Candidates who opt to switch over to new scheme of exemption. In such case, the candidate will be given exemption from appearing in the screening test. They will be also be exempted from appearing in the papers in the equivalent papers.
(iii) Candidate who opts to switch over to the new scheme of examination:
In such case, the candidate will be given exemption from appearing in the screening test. They will also be exempted from appearing in equivalent papers in the BSNL-JAO Exam, now proposed. These exemptions will be valid for 2 attempts and within a period of two years. If the candidate is unable to qualify in the 2nd attempt also, he has to clear the screening test in the newly proposed mode of examination, so as to appear in the main examination.
A4: Candidate who appeared for Part-I and failed totally.
He/she (provided he/she fulfills other eligibility conditions prescribed in new RRs) will be eligible to appear in the new syllabus only.
A5: Periodicity of examination to be conducted for candidates, who opt for existing syllabus, will be as below:-
Ist Year: 2 times Part-I examination and 1 time Part-II examination.
2nd Year: 2 times Part-II examination.
5. All Applicants in this OA have passed the Part-I examination. Applicant No.3 passed it in August, 1998, Applicant No.2 in December, 2000 and Applicant No.1 in the year 2003. Thereafter, they have also been appointed as JAOs on officiating basis from the respective years. In the JAO Part-II examination held in September, 2003, Shri Chandresh Kumar Tripathi and Shri Surendra Kumar (Applicants No.1 and 2 herein) could not appear because the result of JAO Part-I examination in which they appeared in March, 2003 was declared only on 20.08.2003. As the Respondents were not holding the Part-II Examination as provided in the aforesaid guidelines dated 09.09.2002, some persons who passed the Part-I Examination in the year 2003 approached the Allahabad High Court vide CWP No.55710/2005 to direct the Respondent-BSNL to hold the Part-II at the earliest. The High Court, vide its order dated 08.03.2006, disposed of the aforesaid Writ Petition on the assurance of the Respondents that the Part-II examination will be held for them prior to the Part-II examination for the new entrants. Part-II examination was held later in the year 2006 itself and the Applicants have also appeared in it. While Shri Babu Ram Saini and Shri Lalit Babu Sharma (Applicants No.3 and 4 herein) have already appeared and failed in JAO Part-II Examinations held in 2003. The Applicants No.1 and 2 were appearing in the 2006 examination as the first chance. Applicants No.3 and 4 have also appeared with them availing the second chance. However, all of them failed.
6. According to the Applicants, ten grace marks were given to others in the previous years and later in the year 2007 to declare them successful. They have, therefore, requested the Respondents to grant them also grace marks so that they may also be declared successful. Thereafter, they have filed Writ Petition No.44928/2007 before the Allahabad High Court seeking benefits as aforesaid. The said Writ Petition was dismissed vide order dated 18.09.2007 but giving them liberty to make appropriate representations to Respondent No.1 for its consideration and decision in accordance with law. The operative part of the said order reads as under:-
Heard Sri Surendra Pratap Singh, learned counsel for the petitioner, Shri P.K. Singhal learned counsel for the respondents and perused the record.
By means of this writ petition, petitioner wants declaration to be declared as successful candidate in JAO Part-II Examination. If appears that certain guideline and directions have been issued by the Respondents in respect of the qualified candidates (JAO Part-II) vide circular dated 9.9.2002 an Order dated 8.3.2006 passed by this Court. The prayer of the petitioner for a declaration has declare him as qualified candidate in JAO Part-II examination is wholly, misconceived. No such declaration can be granted to the petitioner. The petitioner may move a representation before the Respondent No.1 who may consider and decide the same on merit in accordance with law within a period of two months from the date of production of certified copy of this order.
In view of the above, writ petition is accordingly dismissed.
No order as to costs.
7. Pursuant to the aforesaid directions, the Applicants made their representations. Representation of the Applicant No.1 dated 20.10.2007 is at page 71-72 of the paper book. According to him, he appeared in the JAO-II Examination in December, 2006 as his first attempt and it was conducted on the basis of the aforesaid order of the court decided on 08.03.2006 taking into consideration of the guidelines dated 09.09.2002 wherein special relaxation was provided to candidates to qualify the remaining papers in two attempts. He has also pointed out that in the Part-II Examination held in the year 2003, 3 grace marks were given but he could not appear in it as the Part-I exam was declared only in March 2003.
8. The respondents considered their representations but rejected them vide order dated 29.12.2007. They informed the first Applicant that the 2006 JAO-II Examination was held not as per the direction of the High Court dated 08.03.2006 as the same was already notified earlier in March 2005. It was held in a decentralized manner and the U.P. (W) Circle held it in December, 2006. Further, it was a competitive examination held in accordance with the BNL Recruitment Rules notified on 12.12.2005. There was also a decision, vide their letter dated 11.08.2006, not to grant any grace marks. They have also informed him that he qualified in Part-I Examination the result of which was declared on 21.08.2003 and as a result he could not appear in Part-II Examination for which the last date for submission of the application was 25.4.2003. As far as the six grace marks allowed in JAO Part-II Examination held in December, 2000 were concerned, it was on the approval of the competent authority exclusively as a very special case not to be quoted for future examinations. The Applicants challenged the aforesaid decision of the Respondents before the High Court of Delhi vide Writ Petition No.5641/2008 and while it was pending, the BSNL was brought within the jurisdiction of this Tribunal. Accordingly, the said Writ Petition was dismissed on 15.01.2009 with liberty to seek remedy before this Tribunal. Thereafter, the Applicants filed OA No.972/2009 before this Tribunal. The Respondents have opposed it and submitted that during the DOT era, JAO was a 100% promotional post meant for the departmental officials whereas as per BSNL JAO Recruitment Rules, (i) 50% of the vacant posts are to be filled by direct recruitment from open market through competitive exam, (ii) 40% by internal candidates through internal competitive exam and (iii) and the balance 10% by promotion of the eligible Junior Accountants/Senior Accountants. In other words by the BSNL Recruitment Rules, the examination for JAO has been made competitive in nature. However, since the guidelines issued in 1992 allowed the old DOT syllabus with two attempts, Shri Surender Kumar (Applicant No.2 ) was permitted to appear in the special JAO Part-II examination held in UP (W) circle in December, 2008 and he qualified the same. They have categorically stated that the examination conducted in the year 2006 was competitive and no grace marks were allowed to any candidate. However, the Applicants have annexed the Respondents letter dated 10.08.2009 to show that in terms of the BSNL letter dated 12.02.2004, 10 grace marks were given even in the examination held in the year 2007. Applicants have thus submitted that there is no justification to deny the grace marks to them alone while it was given to the candidates prior to the year 2000 as a matter of right and later in the examination held in 2007 as well. After hearing both sides, this Tribunal disposed of the aforesaid OA vide order dated 19.05.2010 and its operative part is as under:-
11. Admittedly, after the BSNL came into being, they had issued guidelines for examination in respect of candidates having examination for the various papers of Part-I and Part-II of old syllabus. It would be relevant to quote from the said guidelines the relevant portion, which reads as under:
i) Candidates who opt to continue to the existing (DOT) syllabus & mode of examination. They will have to qualify Part-I and Part-II examination within a period of 2 years, with maximum of two attempts in each part. If the candidates are unable to qualify both the parts, i.e. Part-I and Part-II within 2 years, he has to switch over to new syllabus & will have to clear the screening test to appear in the main examination.
ii) Candidate who opt to switch over to the new Scheme of examination: They will be treated as fresh candidates. They have to clear the screening test to appear in the main examination.
A.2 Candidate who already passed JAO Part-I and have not qualified in the Part-II examination and with no exemption in any of the papers: Candidates will have to exercise either of the two options, viz.:
to continue in the existing syllabus (DTO) to switch over to new syllabus
i) Candidates who opts to continue in the existing (DOT) syllabus & mode of examination: They will have to qualify Part-II examination, within a period of two years and within two attempts. If a candidates is unable to clear Part-II within 2 years, he/she has to switch over to new syllabus & to qualify the screening test so as to appear in the main examination.
A.5. Periodicity of examination to be conducted for candidates, who opt for existing syllabus, will be as below:
1st year: 2 times Part-I examination and 1 time Part-II examination 2nd year: 2 times Part-II examination.
12. Perusal of the above shows that those candidates who had opted to continue in the existing DOT syllabus and mode of examination, they were required to qualify both Part-I and Part-II examination within a period of two years with maximum of two attempts in each part meaning thereby that the persons who had opted for the existing syllabus of DOT, would be given two attempts in each part within two years.
13. It is also relevant to mention here that earlier it issued to be only qualifying examination and perusal of the order, which is annexed with the petition, shows that grace marks were generally given to make up the shortfall in qualifying the test if it was short by few marks. Grievance of the applicants in this case is that BSNL came into being in the year 2000, but they were not given two attempts under the old Recruitment Rules because first examination was held in the year 2003, when applicants No.1 and 2 cleared Part-I examination, but applicants No.3 and 4 failed. The second attempt was given to them only in the year 2006, but this time respondents did not treat the examination as a qualifying examination by giving them grace marks, but failed them by treating it as a competitive examination.
14. According to the applicants, they were short only upto to 3 marks and if it was to be treated as per DOT rules, they ought to have been given grace marks upto 3 marks and they would have been declared successful. It is not disputed by the respondents that examination was held in the year 2003 and 2006 for Part-II meaning thereby, applicants were given two attempts for appearing in Part-II examination. In the guidelines, it was clearly mentioned that the candidates who had opted to continue in the existing DOT syllabus and mode of examination, they would be given two attempts, meaning thereby, their mode of examination was also to be treated as a qualifying examination and not as a competitive examination.
15. At this stage, it would also be relevant to refer to the judgment dated 08.03.2006 passed by the Honble High Court of Allahabad, wherein respondents had admitted that after issuance of detailed guidelines, those candidates who had passed Part-I examination in September, 2003, the JAO examination would be held in March, 2006. Counsel for the respondents had already conceded that petitioners have to be given two chances for JAO Part-I and Part-II examination and they will become junior to those persons who had already joined the post in terms of the new syllabus. The most important aspect is that counsel for the respondents had categorically stated that next JAO Part-II examination for already qualified JAO Part-I candidates under old syllabus is going to be conducted in March, 2006 meaning thereby that they had already admitted before the Honble High Court of Allahabad that examination for part-II would be held in March, 2006 as per the old syllabus. It was also made clear by the Honble High Court of Allahabad that petitioner would be given two attempts in JAO Part-II examination. The question, therefore, is whether applicants had been given two attempts under the old syllabus and mode of examination or not. From the reply given to the applicants by the respondents, it is clear that they had treated examination of 2006 as competitive examination and not as a qualifying examination. Admittedly no grace marks were given to the applicants, whereas applicants have annexed letter dated 10.08.2009 which shows that even for those candidates who had appeared in the year 2007, 10 grace marks were given. In these circumstances, we had put a specific question to the counsel for the respondents as to how respondents were granting grace marks in 2007 while denying the same to the applicants in the year 2006. Counsel for the respondents stated that in 2007 the Screening Test was held, but the main question is not answered whether grace marks were given to those candidates or not. In case grace marks were given to the candidates who had appeared in Part-II examination held in the year 2007, we see no reason as to why grace marks could not be given to the candidates who undertook Part-II examination in the year 2006. In this view of the matter, we remit this case back to the respondents with the direction to reconsider the whole matter and in case they had given grace marks to the candidates, who had appeared in the examination in 2007, the same should be given to the applicants also. Respondents should pass a reasoned and detailed order within a period of two months from the date of receipt of a copy of this order under intimation to the applicants.
16. With the above direction, this O.A. is disposed of. No costs.
9. The Respondent-BSNL challenged the aforesaid order before the Honble High court of Delhi vide Writ Petition ( C) No.8203/2010 CMD BSNL Vs. Chandresh Kumar Tripathi and Others and it was disposed of vide order dated 28.02.2012 and its operative part is as under:-
We note from the impugned order dated 19.05.2010 passed in O.A. No. 972/2009 by the Central Administrative Tribunal, Principal Bench, New Delhi, that the respondents herein had raised a plea that candidates who had appeared in the year 2007 had been given 10 grace marks. On the other hand, the counsel on behalf of the petitioner before the Tribunal was not very clear in his answer to the query raised by the Tribunal as to whether the grace marks had been given in the year 2007 or not. It is in this context that the Tribunal passed the following order:-
In case grace marks were given to the candidates who had undertaken Part-II examination held in the year 2007, we see no reason as to why grace marks could not be given to the candidates who undertook Part-II examination in the year 2006. In this view of the matter, we remit this back to the respondents with the direction to reconsider the whole matter and in case they had given grace marks to the candidates, who had appeared in the examination in 2007, the same should be given to the applicants also. Respondents should pass a reasoned and detailed order within a period of two months from the date of receipt of a copy of this order under intimation to the applicants.
2. We may point out that the Part-II examination which has been referred to in the above extracted portion relates to the Part-II examination as per the DoT syllabus. The Tribunal has directed that if any candidate who has undertaken the Part-II examination held in the year 2007 was given grace marks for that examination, there was no reason as to why grace marks could not have been given to the candidates such as the respondents who undertook Part-II examination in the year 2006. Since the factual position was not clear before the Tribunal, it had decided to remit the matter to the petitioner herein with the direction to reconsider the entire matter and in case it found that grace marks had been given to the candidates who appeared in the Part-II examination as per the DoT syllabus held in 2007, the same would also be given to the respondents herein. The petitioner was also directed to pass a reasoned and detailed order within the period of two months. Since that period has expired, we extend the time by a further period of two months. We may note that the learned counsel for the petitioner stated that the 10 grace marks which were allegedly given in the year 2007 were in respect of the screening test held on 2007 and was not for Part-II examination.
3. Subject to the extension of time indicated above, the Tribunals order does not call for any interference. The writ petition stands disposed of.
10. The impugned letter dated 25.4.2012 in this OA has been issued by the Respondents in compliance of the aforesaid order of the Honble High Court dated 28.02.2012 arising out of the order of this Tribunal in OA No. 972/2009 (supra) dated 19.05.2010. According to them:
1. Vide BSNL recruitment Rules dated 31.08.2001 and Vide letter No.17-3/2000-SEA dated 13.08.2002, a new pattern for JAO Exam (Scheme & Syllabus) was circulated, through which Screening test was introduced which will be qualifying and objective exam in place of earlier JAO Part-I exam which happens to be Qualifying and Descriptive in nature. Similarly, Main Exam (JAO Part-II) will be competitive and Descriptive exam. As such, only those candidates who qualify Screening Test become eligible for appearing in Main Exam (JAO Part-II).
2. The screening test was conducted as per BSNL Recruitment Rule in lieu of JAO Part-I exam of DOT era in which 6 papers of 4 subjects were held. 10 grace marks mentioned by applicants were awarded only to such candidates who have not passed JAO Part-I exam but got exemption in certain subject and were appearing in the screening test. Hence, 10 grace marks were in lieu of the exemption already obtained by the candidates in earlier JAO Part-I exam and not a relaxation of standard as stated by the applicants. The applicants appeared in JAO (Part-II) December 2006 examination as per BSNL Corporate Office letter No.10-10/2005-DE dated 12.12.2005 vide which detailed instruction related to the (examination) to be held in 2006. The exam was conducted by different Circle on different dates and it was conducted by U.P. (W) Circle in December, 2006.
The Para 4 of the above letter stipulates that the examination shall be held in a completely decentralized manner. Since JAO is a Circle cadre, eligible candidates from the Circle will be allowed to compete for the vacancies for that circle only. In case the number of qualified candidates is more than the available vacancy, the selection will be done as per merit and vacancy in different categories in Circle. It has further been clarified vide letter No. 10-4/2006-DE dated 11.08.2006 that the above examination is of descriptive type and not a qualifying examination and hence extension of 3 grace marks in this examination is not appropriate. Accordingly, no grace marks were granted to failed candidates of JAO Part-II exam held in 2006.
From the above, it is categorically clear that the exam conducted by U.P. (W) Telecom Circle as per the BSNL COs letter dated 12.12.2005 was competitive in nature. Hence grace marks can not be granted. Also, no such grace marks were given in JAO (Part-II) 2006 Exam. Moreover, another JAO Part-II exam was held in 2010, in which also, no grace marks have been granted to failed candidates and successful candidates have already been appointed as JAO.
The grant of 10 grace marks for each subject to those candidates in screening test who have not passed earlier JAO Part-I examination but got exemption in certain subject cannot be compared with relaxation of standards since grant of 10 grace marks were given in lieu of exemption already obtained by the candidates in earlier JAO Part-I exam and was not given to make up for the shortfall in qualifying marks. This case pertains to demand of JAO Part-II failed candidates seeking grace marks on the analogy of the grace marks awarded to JAO Part-I filed (but got exemption in some subject) as stated above which is incomparable. Therefore, the request of applicants to grant grace marks/relax the qualifying standards in JAO Part-II held in 2006 on the same lines as in screeing test cannot be acceded to since both are not comparable. It is intimated that no grace marks in JAO Part-II Examination were given in 2006.
In view of the above, the claim of the applicants to grant grace marks/to declare successful for JAO (Part-II) exam held in 2006 which was Competitive exam cannot be acceded to.
11. The Applicants have challenged the aforesaid order in this OA on the grounds that it is contrary to the findings of this Tribunal in its earlier order in OA No. 972/2009 (supra), the Respondents had again relied upon their letter dated 12.12.2005 on the ground that Examination Part-II was held in December, 2006 was a competitive examination. Further, the aforesaid stand taken by the Respondents is incorrect as this Tribunal in its judgment dated 19.05.2010 categorically held that Examination Part-II was according to the guidelines issued on 09.09.2002 based on old syllabus and not according to the new syllabus. The Respondents before the Honble High Court of Allahabad in its judgment dated 08.03.2006 had already considered that the Examination Part-II would be held in March, 2006 as per the old syllabus in view of the aforesaid concession and, therefore, the letter dated 12.12.2005 has become redundant. Further, this Tribunal has categorically held that the candidates who appeared subsequently in the year 2007 in Part-II examination were given 10 grace marks but the Applicants who appeared in the year 2006 were denied. According to them, once grace marks have been given to the candidates who had appeared in 2007 Examination, there was no justification to deny the same to the Applicants who had appeared in 2006.
12. The Respondents in their reply have submitted that according to the earlier Recruitment Rules, JAO Examination was held in 2 parts Part-I ad Part-II. Vide letter dated 13.08.2002 a new pattern for JAO [Exam (Scheme & Syllabus) ] was circulated, through which screening test was introduced and Part-II Examination was held to be qualifying in nature. Similarly, JAO Part-II Examination was made the Main Examination as competitive while it was qualifying in nature earlier. Thus, only those candidates who qualify the screening test became eligible for appearing in the Main Examination, i.e., JAO Part-II Examination. In DOT era, JAO Part-I Exam was in six papers. 10 grace marks were awarded to such candidates who have not passed JAO Part-I Examination but got exemption in certain subjects and was appearing in the screening test in the said subject. Thus, 10 grace marks were in lieu of the exemption already obtained by the candidates in earlier JAO Part-I Examination and not a relaxation of standard. The Examinations were conducted by different Circles on different dates and it was conducted by UP (W) Circle in December, 2006. In the present case, the Applicants appeared in JAO Part-II December, 2006 Examination as per Corporate Office letter No.10-10/2005-DE dated 12.12.2005 in which detailed instructions relating to examination was introduced. Para 4 of the said letter stipulated that the examination shall be held in a completely decentralized manner. Since JAO is a Circle Cadre, eligible candidates from Circle will be allowed to compete for the vacancies for that Circle only. In case the number of qualified candidates is more than the available vacancy, the selection will be done as per merit and vacancy in different categories in Circle. Vide letter dated 10.08.2006, also, it was further clarified that the above Examination is of descriptive type and not a qualifying examination and hence extension of three grace marks in the said examination is not appropriate. Accordingly, no grace marks were granted to failed candidates of JAO Part-II Examination held in 2006. The Examination conducted by UP (W) Telecom Circle was as per BSNLs letter dated 12.12.2006, hence no grace marks were granted to the JAO Part-II Examination. The said Examination was also held in 2010 in which no grace marks were allowed to the failed candidates and the successful candidates had been appointed as JAO. The grant of 10 grace marks for each subject to those candidates in screening test who have not passed earlier JAO Part-I Examination but got exemption in certain subjects cannot be compared with relaxation of standards since grant of 10 grace marks given in lieu of exemption already obtained by the candidates in earlier JAO Part-I Examination and was not given to make up for shortfall in qualifying marks. Thus, the Applicants are not entitled to any relief in this Original Application and the same is liable to be dismissed.
13. We have heard the learned counsel for the Applicants Mrs. Rani Chhabra and the learned counsel for the Respondents Mr. M.M. Sudan. It is seen that this is the second round of litigation by the Applicant. In the first round, they filed OA No.972/2009 (supra) and it was disposed of vide order dated 19.05.2010 remitting the case to the Respondents with the direction to reconsider the whole matter and in case the candidates in the 2007 examination were granted grace marks, the same should be given to the Applicants also. The High Court, vide its order dated 28.02.2012 in W.P. No.8203/2010 (supra), has confirmed the aforesaid order of this Tribunal. Admittedly, promotions to the post of Junior Accounts Officers in the Telecommunication Wing of the Indian Posts and Telegraphs Department were governed by Junior Accounts Officers Services, Telecommunication Wing (Group C) Recruitment Rules, 1977. After the corporatisation of BSNL in the year 2000, the BSNL notified its own Recruitment Rules, namely, the JAO Recruitment Rules, 2001 which came into existence on 31.08.2001. However, the syllabus according to the said Rules was issued only on 12.10.2004. Thereafter, they have been holding the Part-I and Part-II examinations as per the new syllabus. In the interregnum, Part-I and Part-II examinations were being held as per the old rule and the old syllabus. There were candidates who have passed Part-I examination waiting to appear in the Part-II Examination as the candidates were entitled to a maximum number of six chances. For example, Applicant No.3 in this case has appeared and qualified in the Part-I examination in August, 1998. He could avail six chances for qualifying the Part-II examination. Similarly, the Applicant No.2 qualified the Part-I examination in December 2000 and the Applicant No.3 in March 2003. Though the BSNL has already got corporatised in the year 2000, since the new rules were notified only on 31.08.2011 and the new syllabus was finalized only on 12.10.2004, the Part-II examination continued to be held till September 2003 as per the old syllabus. However, after the new Recruitment Rules have come into existence and new syllabus was being finalized, the Respondent-BSNL did not hold any further Part-I examination as per the old syllabus. But for those who have appeared in the Part-II examination in the year 2000, the Respondents have given grace marks so that they are declared successful and they are regularized as JAOs. The same practice granting grace marks was repeated for the Part-II examination held in the year 2003 also. Applicants could not appear in the said examination and, therefore, they could not avail of the grace marks. Meanwhile, in order to protect the interest of those Telecom Office Assistants who have already qualified the JAO Part-I examination governed by the old rules, the Respondent-BSNL has issued the guidelines on 09.09.2002 in which two chances were guaranteed to them to pass the JAO Part-II examination. But, as against the said guidelines, since the Respondent-BSNL has not been holding the Part-II examination, some of the affected persons who passed the Part-I examination earlier filed Civil Miscellaneous Petition No.55710/2005 before the High Court of Allahabad. Their grievance was that the BSNL was not conducting the Part-II examination as per their aforesaid guidelines dated 09.09.2002. According to the BSNL, due to administrative reasons Part-II examination could be held in the year 2003. The High Court, therefore, directed the BSNL that examination of the petitioners therein for JAO Part-II shall be held prior to the examination of new entrants and the petitioners shall be given two attempts in the examination part-II. Applicants in this OA are similarly placed. They were, no doubt, governed by the Junior Accounts Officers Services, Telecommunication Wing (Group C) Recruitment Rules, 1977 and the instructions issued vide D.G., P.&T, letter No.17/1/77-SEA dated the 6th May, 1977. In terms of the aforesaid guidelines dates 09.09.2002, they were also entitled to have two chances to appear in the JAO Part-II examination. Applicant No.1 and 2 could not appear in the Part-II examination held in 2003 as their result in part was declared late. Thus, they were denied even the first chance to appear in Part-II examination. However, the other two applicants had already availed the first chance and failed but they were entitled for the 2nd chance. Thus, when the Respondent-BSNL held the Part-II examination in 2006 after the order of the Allahabad High Court in CWP No.55710/2005 decided on 08.03.2006, the Applicants herein have also appeared in it but failed for few marks. They were, therefore, expecting that they would also be given grace marks as in the case of the 2000 and 2003 Part-II examinations. The Respondents have given grace marks even for the 2007 examination. They have, therefore, requested the Respondents to grant them grace marks as was given to the Part-II examinees of the years 2000, 2003 and 2007. However, stance of the Respondent-BSNL is that the Part-II examination held in 2006 was not on the basis of the directions of the Allahabad High Court in CWP No.55710/2005 (supra) but as per the Corporate Office letter No.10-10/2005-DE dated 12.12.2005 according to which the examination shall be held in a completely decentralized manner. Since JAO is a Circle Cadre, eligible candidates from Circle will be allowed to compete for the vacancies for that Circle only. In case the number of qualified candidates is more than the available vacancy, the selection will be done as per merit and vacancy in different categories in Circle. If that is so, the question that arises is what happened to their assurance before the Allahabad High Court in CWP No.55170/2005 (supra) that the Part-II examination as per the old syllabus will be held for those who appeared and cleared the Part-I examination in the year 2003, prior to the Part-II examination according to the new rules and syllabus. If no such examination has been held, first of all it is against the aforesaid assurance of the Respondents before the Allahabad High Court. Secondly, as far as the Applicants who are similarly placed as the petitioners in CWP No.55170/2005 (supra) are concerned, Part-II examination in which they have participated in the year 2006 shall be treated as the examination conducted by the Respondents pursuant to the aforesaid direction of the Allahabad High Court. Otherwise, it will amount to denial of two chances guaranteed to them in terms of the guidelines dated 09.09.2002.
14. Even otherwise, it is seen that the very purpose of granting grace marks to those who have passed the Part-I examination was to see that after corporatisation, they are not placed in a disadvantageous position. We do not see any other reason for granting 6 grace marks to those who appeared in the Part-II examination in the year 2000. Again, they have given 3 grace marks to those who appeared in Part-II examination in 2003. The said fact is evident from Respondents own letter dated 08.05.2004, the relevant part of it is as under:-
3. The names of candidates in Annexure-III who have been declared qualified by granting a grace of 3 marks are arranged in the order of merit. Candidates in Annexure-III have been placed en bloc junior to all those who have qualified in normal course and are included in Annexure-I.
Therefore, we do not find any merit in the contention of the Respondents that the six grace marks allowed in the JAO Part-II exam held in December, 2000 was approved by the Competent Authority exclusively for that examination as a very special case not to be quoted as precedent in future examinations and the JAO Part-II exam conducted in December, 2006 was competitive in nature as per para-4 of the notification dated 12.12.2005 issued by BSNL. As regards the 10 grace marks given in the 2007 examination is concerned, contention of the Respondent-BSNL is that they were awarded only to such candidates who have not passed Part-I examination but got exemption in certain subjects and were appearing in the screening test. Hence those 10 grace marks were in lieu of the exemption already obtained by the candidates in earlier Part-I examination. However, it is seen that under the 1977 Recruitment Rules, there was no provision for any grace marks. Even in the instructions issued vide D.G. P.&.T. letter dated 06.05.2007, there is no provision for grace marks. They only gave exemptions from appearing in certain papers. In the guidelines issued on 09.09.2002 by the BSNL after the Notification of JAO Recruitment Rules, 2001 also, there was no provision for grace marks. Thus it is seen that the grace marks introduced in the year 2000 and continued in the year 2003 and 2007 were meant for the candidates who have already cleared JAO examination Part-I under the old rules and syllabus but could not qualify the Part-II examination under same rules and syllabus. Rather, we find that the grace marks have been granted to the candidates who passed the Part-I examination and could not pass the Part-II examination under the old rules. Even if it we agree with the contention of the Respondents that the grace marks given in the year 2007 was not for the candidates who have not passed the Part-II examination, we find no justification for denying the grace marks to the Applicant for Part-II examination held in 2006 as they have admittedly granted grace marks to those who failed in the Part-II examination held in 2000 and 2003 before switching over to the new rules. Further, it is seen that the Applicants herein have been officiating as JAOs from the years 1998/2000/2003. Unless they are declared qualified in Part-II examination by granting the grace marks they cannot be regularized in that post. There reversion at this belated stage also cannot be appreciated.
15. In view of the above position, this OA is allowed. Consequently, the impugned order dated 25.04.2012 is quashed and set aside. We further direct the Respondents to grant grace marks to the Applicants who participated in the Part-II examination held in December, 2006 as they have done in the case of the candidates who participated in the 2000 and 2003 examinations, with all consequential benefits including regularization as Junior Accounts Officers, seniority etc. at par with their batch-mates of that year except arrears of salary and allowances. The aforesaid directions shall be complied with, within a period of 2 months from the date of receipt of a copy of this order. No costs.
(SHEKHAR AGARWAL) (G. GEROGE PARACKEN) MEMBER (A) MEMBER (J) Rakesh