CWP No. 16658-CAT of 2009 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. CWP No. 16658-CAT of 2009 Date of decision : March 4, 2010 Ravinder Kumar and another .....Petitioners Vs. Union of India and others ....Respondents ****** CORAM: HON'BLE MR. JUSTICE M.M. KUMAR HON'BLE MR. JUSTICE JITENDRA CHAUHAN Present: Mr. G.S. Bal, Advocate for the petitioner. Mrs. K.K. Kahlon, Advocate for Respondent No.1 Mr. Anil Rathee, Advocate for Respondent Nos.2 & 3. 1. To be referred to the Reporters or not? 2. Whether the judgment should be reported in the Digest? M.M. Kumar, J. This petition under Article 226/227 of the Constitution is directed against order dated 06.04.2009 (Annexure P-4) rejecting their claim for promotion to T.E.S. (Group 'B') in pursuance of departmental examination held on 25-26.11.2000 has been rejected. A further prayer has also been made for issuance of a direction to the respondents to consider and promote the petitioners to T.E.S. (Group 'B') in pursuance of the aforesaid departmental qualifying examination with effect from the date persons similarly situated have been promoted along with all consequential benefits. CWP No. 16658-CAT of 2009 2 Petitioner no.1 acquired the qualification of B.Tech. (Electrical) and joined the respondent-department as Junior Telecom Officer (J.T.O.) on 3.2.1998, as a result of direct recruitment. Likewise, petitioner no.2 after passing B.A. Examination was initially appointed as Telecom Operator with effect from 15.5.1981. Lateron he earned promotion as J.T.O. on 3.4.1996 against 15% quota meant for departmental candidates. The next promotion available to the petitioners is to Tele Communication Engineering Services (Group 'B') (for brevity T.E.S. 'Group B'). T.E.S.(Group 'B') service is regulated by the statutory rules known as T.E.S. (Group 'B'), Recruitment Rules, 1996. (for brevity '1996 Rules'). On account of the fact that the vacancies which were sought to be filled in, have occurred prior to 22.07.1996 when 1996 Rules were enforced. The earlier rules known as Telecom Engineering Service 'Group B' Recruitment Rules, 1981 (as amended in 1986-87) were made applicable (for brevity '1981 Rules'). According to 1981 Rules, 66 2/3% vacancies in the cadre could be filled in from those officials who had qualified departmental qualifying examination The rest of 33 1/3% of the vacancies were to be filled in by way of lmited departmental competitive examination on the basis of merit. The rules had prescribed minimum pass marks for qualifying the examination to be 40% in each paper for general category candidates and 35 % for S.C./S.T. candidates. The departmental qualifying examination consisted of three papers of 100 marks each. Accordingly, the examination was held on 25/26.11.2000. The petitioner no.1 obtained 35, 33 and 67 marks in his respective papers and petitioner no.2 obtained 45, 34 and 54 marks in the papers. Before the Tribunal the petitioners have placed reliance on instructions issued by circular dated 17.7.1971 (Annexure P-2) along with CWP No. 16658-CAT of 2009 3 various other circulars. However, the Tribunal after considering the claim made by the petitioners and the stand of the respondents concluded that the instructions on 17.7.1971, 4.5.1981 and 3.10.2000 providing for certain relaxed standard for the S.C./S.T. candidate appearing in the departmental examination, were not available to the petitioners because the 1981 Rules had already occupied the field by providing lower standards of performance by the SC/ST candidate. The view of the Tribunal is discernable from para 10 of its judgment where it has been held that the Rules cannot be relaxed on the basis of instruction whereas the instruction can be modified to make them consistent with the Rules. The Tribunal further held that the petitioners failed both in departmental qualifying examination held on 25/26.11.2000 as well as in competitive examination as per the result declared on 13.9.2001. Both the petitioners have failed to make grade even as per relaxed standard provided in the 1981 Rules for the candidates belonging to the SC/ST category. The claim of the petitioners based on instructions of 17.7.1971 was rejected. According to those instructions, a Scheduled Caste candidate was required to obtain 33% marks in each paper and 38% in aggregate for qualifying examination. If the petitioners are declared successful in the qualifying examination then they have to be given post against 25% quota of the departmental competitive examination. Accepting these submissions made by the respondents, the Tribunal held that as per 1981 Rules, a minimum pass marks for qualifying the examination were 35% in the case of SC/ST candidate and for the limited competitive examination they were required to secure 45% marks. Both the petitioners were not able to secure 35% marks as per the requirement of Rules. Even on revaluation no benefit could be CWP No. 16658-CAT of 2009 4 secured by them. The Tribunal also opined that relaxation in percentage of marks is already provided in the Rules and the petitioners' claim for further relaxation under the guidelines dated 17.7.1971 and 3.10.2000 was without any merit. The Tribunal also accepted the stand of the respondents that the power to relax a Rule cannot be exercised in the absence of any special reason which was found missing in the case of petitioners. Even otherwise relaxation cannot be claimed as a matter of right as is settled position of law. No law has been cited, which may constitute a basis for the High Court to issue direction in exercise of power under Article 226/227 of the Constitution. Even the reliance of the petitioners on a circular dated 23.11.1984 was found without any merit. These instructions were issued in respect of qualifying examination held in August 1980 which was much prior to enforcement of 1981 Rules. In pursuance of those instructions, additional marks were granted to SC/ST candidate. However, by virtue of enforcement of Rules, the instructions would be deemed to have become inapplicable. In any case, the letter dated 23.11.1984 was issued to deal with a peculiar situation arising in case of qualifying examination held in August, 1980. Having heard the learned counsel for the parties at a considerable length, we are of the view that once the Rules have occupied the field by providing a relaxed standard of securing of marks in an examination then to rely on instructions issued earlier than the Rules, would be wholly uncalled for. Therefore, ex facie instruction dated 17.7.1971 or 4.5.1981 since applied to examination of 1980 would not be attracted to the facts of present case. There is no reliance placed on the instruction dated 3.10.2000. However, the instruction dated 3.10.2000 (Annexure P-7) only takes into CWP No. 16658-CAT of 2009 5 consideration the proviso added to Article 335 of the Constitution by 1982 amendment. In pursuance of the enabling proviso of Article 335 of the Constitution, the Ministry of Personnel, Public grievances and Pension has decided to restore the relaxed/concession in the matter of promotion of candidate belonging to SC/ST category by way of lower qualifying marks. The provision in that respect has already been made in the Rules of 1981. Therefore, advisadly no issue on the basis of these instructions have been raised. The writ petition is wholly without merit and is thus dismissed. (M.M. KUMAR) JUDGE March 4, 2010 (JITENDRA CHAUHAN) Anand JUDGE