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2012 DIGILAW 1301 (MAD)

T. Vijayan v. Union of India

2012-03-12

ELIPE DHARMA RAO, M.VENUGOPAL

body2012
Judgment (ELIPE DHARMA RAO, J.) 1. Aggrieved by the order of dismissal dated 14.9.2011 passed in O.A. No. 920 of 2010, the applicant before the Tribunal has come forward with the present writ petition. 2. The facts leading to filing of the writ petition are as follows :- The petitioner is working as Telecom Technical Assistant in the office of the fourth respondent. For promotion to the post of Junior Accounts Officer, he had appeared in the internal competitive examination conducted in 2010. The Examination contains two parts, viz., Part I and Part II. The candidates who had cleared Part I are eligible for Part II examination. Part II internal competitive examination contains five papers in three subjects and the minimum mark for passing is 40% and 45% in aggregate but, however, the minimum qualifying marks for SC/ST is 33 in each subject and 38% in aggregate. The petitioner appeared in the examination and by proceedings dated 09.3.2010, he came to know that he was not selected and his name was not included as against 112 vacancies. Thereafter, the petitioner made request to the authorities to produce the answer sheets and the marks obtained by him in each subject. The fourth respondent by proceedings dated 26.3.2010, declared the marks of the petitioner further declaring him as 'failed' in Paper-V Civil Work Accounts Rules and Procedure. According to the petitioner, due to the discrepancies in the Key answer supplied to the Examiners for Paper-V and due to non-awarding of marks or awarding less marks in violation of the Examiners' Notes, he was declared as failed. Challenging the order dated 09.3.2010 rejecting the candidature of the petitioner, he preferred Original Application before the Tribunal. 3. The stand of the respondent Department was that the petitioner was barred to raise any objection against it in view of the law of estoppel by his own act or conduct and revaluation of answers scripts is not permissible in any case. 4. The Tribunal, considering the contentions raised by the learned counsel for the parties, dismissed the Original Application by placing reliance on the decision of the Supreme Court in H.P. Public Service Commission v. Mukesh Thakur & another (2010) 6 SCC 759 . The aforesaid order is in challenge in the present writ petition. 5. Heard the learned counsel appearing for the petitioner and the learned Standing Counsel representing the Department and perused the records. The aforesaid order is in challenge in the present writ petition. 5. Heard the learned counsel appearing for the petitioner and the learned Standing Counsel representing the Department and perused the records. 6. Learned counsel for the petitioner, reiterating the contentions raised before the Tribunal, would specifically contend that a perusal of the answer script of the petitioner would show that the petitioner has answered the concerned questions correctly, but the answer key furnished by the Department has not been evaluated at all and the petitioner has been awarded lesser marks in comparison to persons who have answered same questions. In support of the aforesaid contention, the learned counsel has relied on an earlier decision of the Ernakulam Bench in O.A. No. 348 of 2010, wherein similar relief was granted to the petitioners therein. 7. In order to appreciate the contentions raised by the petitioner, we have gone through the answer scripts produced by the petitioner. From the answer script of Paper V Part II JAO Examination, it is seen that in Page No. 27, the column dated 10.7.2005 was not evaluated and no marks were awarded. Likewise, in Page No. 29, the column dated 29.7.2005 was also not evaluated. We are able to notice that these two entries do not even bear a tick mark. Therefore, it is clear that the said two columns were left unnoticed. It is not in dispute that if those two entries had been evaluated, the petitioner would have cleared the examination and he would have become eligible for promotion. 8. The petitioner has asserted in the writ petition that two candidates belonging to the Scheduled Caste were awarded 5 marks as grace marks in order to qualify in the examination after revaluation, though they initially failed. If five marks is taken into the account of the petitioner as grace marks, the petitioner would only be short of half a mark i.e., 0.5 mark for getting pass mark in the examination. In other words, the petitioner has to get half a mark to qualify. When the aforesaid two pages, viz., 27 and 29 were evaluated properly, the petitioner would have surely got qualified in the examination. 9. In other words, the petitioner has to get half a mark to qualify. When the aforesaid two pages, viz., 27 and 29 were evaluated properly, the petitioner would have surely got qualified in the examination. 9. The Tribunal without going into the factual aspects i.e., going through the answer scripts, ought not to have come to a conclusion that the petitioner is not eligible to get qualifying marks in the light of the decision of the Supreme Court in Mukesh Thakur's case (cited supra). The decision of the Supreme Court has not prevented the Tribunal from going into the factual aspects and arrive at a conclusion. In the present case, the instructions issued by the Government of India by its letter dated 02.8.2010, which was subsequent to the decision of the Supreme Court in Mukesh Thakur's case, permits revaluation when the particular answers were not evaluated and when examiner awarded marks to one candidate and not to other candidate for the same answers. Considering all the aforesaid circumstances, in the interest of justice, we consider it appropriate that the petitioner is entitled for awarding marks for those two items and he is eligible for getting pass mark in the said JAO Examination. Accordingly, the writ petition is disposed of with a direction to the Respondents / authorities concerned to award marks for those two pages stated above and take steps to extend the consequential benefits on par with the persons who appeared in the examination pursuant to notification dated 17.8.2009 and promotion effected on 19.4.2010, within a period of four weeks from the date of receipt of a copy of this order. No costs.