UNION OF INDIA AND ORS. versus MUKESH KUMAR MEENA on 28 April 2022

Conclusion

1. Feeling aggrieved and dissatisfied with the impugned judgmentand order dated 20.02.2015 passed by the High Court of Judicature forRajasthan at Jodhpur in DBCWP No. 1542 of 2015, by which the HighCourt has allowed the said writ petition preferred by the respondentherein – original writ petitioner and has set aside the judgment and orderpassed by the Central Administrative Tribunal, Jodhpur Bench, Jodhpur(hereinafter referred to as the “Tribunal”) in O.A. No. 155 of 2014 bywhich the learned Tribunal dismissed the said application preferred bythe respondent herein – original applicant (hereinafter referred to as“original applicant”) and has directed to extend the grace marks in thesubject of “Other Taxes” by treating him as a person belonging to generalcategory, Union of India and Others have preferred the present appeal.

2. That the original applicant belongs to Scheduled Tribes(ST)category. Heentered in services of the Department of Income Tax beingappointed as Lower Division Clerk (LDC). He was promoted to theposts of Tax Assistant, Sr. Tax Assistant and Office Superintendent.With a view to regulate the departmental examination for Income TaxInspectors, the competent authority introduced modified rules forDepartmental Examination for Income Tax Inspectors – 1998(hereinafter referred to as the “Rules, 1998”). The said Rules weremade applicable for the departmental examination to be held in 1998 andonwards. The departmental examination under the Rules, 1998 consistedof six papers namely viz. Income Tax Law and Assessment, Other Taxes,Book Keeping, Office Procedure, Examination of Accounts and HindiTest. A candidate securing minimum 45% marks in five subjects exceptin Hindi was entitled to be declared as pass. For the members ofScheduled Castes and Scheduled Tribes the minimum marks required toqualify the examination was 40% of the maximum marks.

2.1 For the benefit of those candidates, who marginally failed tosecure minimum marks/percentage irrespective of their category on AB

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Afalling short of passing,upto five marks, the Central Board of DirectTaxes introduced policy of awarding grace marks. The original applicantsecured the marks in different subjects as under:- B

C

2.2 Thus, the original applicant secured more than 45% marks ineach subject except the subject of “Other Taxes”. According to theoriginal applicant, he was entitled for grace marks in the subject of “OtherDTaxes”,but the same were not given to him as he was treated qualifiedin the category of Scheduled Tribes. Therefore, it gave cause to him toapproach the Central Administrative Tribunal, Jodhpur Bench, Jodhpurby way of filing O.A. No. 155 of 2014.

2.3 Before the Tribunal, it was the case on behalf of the originalEapplicant that though he belongs to ST category and he passed in theexamination with relaxed standards of marks provided for SCs and STscategory, but he actually got 43 marks in one of the subjects and had hebeen given two grace marks in the “Other Taxes” paper in thedepartmental examination, he would have been declared passed in 2007itself on his own merit and would have been eligible to get the benefit ofFpromotion against general vacancies.

2.4 The learned Tribunal by a reasoned and detailed judgmentand order dismissed the said application by observing that the CBDTcircular providing grace marks cannot be interpreted to mean that aperson, who has passed in his own category can be given further graceGmarks to enable him to move in the general category on his own merit.The learned Tribunal also considered the object and purpose of introducingthe grace marks policy, namely with the purpose of enabling marginallyfailing candidatesto pass the examination.

2.5 Feeling aggrieved and dissatisfied with the judgment and orderHpassed by the learned Tribunal dismissing the O.A., the respondent herein – original applicant preferred the writ petition before the High Court. Bythe impugned judgment and order, the Division Bench of the High Courtrelying upon the decision of this Court in the case of Rajesh KumarDaria Vs. Rajasthan Public Service Commission and Ors., (2007)8 SCC 785 has allowed the said writ petition and has quashed and setaside the judgment and order passed by the learned Tribunal and hasdirected the Department to extend grace marks to him in the subject of“Other Taxes” by treating him as a person belonging to general category.

2.6 Feeling aggrieved and dissatisfied with the impugned judgmentand order passed by the High Court, the Union of India and others havepreferred the present appeal.

3. Shri Nachiketa Joshi, learned counsel appearing on behalf ofthe appellants – Union of India and others has vehemently submittedthat the impugned judgment and order passed by the High Court is beyondthe grace marks policy declared by the Central Board of Direct Taxes.

3.1 It is submitted that while passing the impugned judgment andorder, the Hon’ble High Court has not at all appreciated the object andpurpose of allowing the grace marks. It is submitted that as rightlyobserved by the learned Tribunal, the grace marks were to be providedonly for the purpose of enabling marginally failing candidates to pass theexamination.

3.2 It is submitted that as rightly observed by the learned Tribunal,the grace marks policy was not applicable in favour of a person, whohas passed in his own category. It is submitted that it was not meant togive further grace marks to enable a person, who has passed in his owncategory to move to the general category on his own merit.

3.3 It is further submitted that the Hon’ble High Court has assuch erred in applying the decision of this Court in the case of RajeshKumar Daria (supra). It is submitted that the said decision shall not beapplicable to the facts of the case on hand.

3.4 Making above submissions, it is prayed to allow the presentappeal.

4. Present appeal is vehemently opposed by Dr. Sumant Bhardwaj,learned counsel appearing on behalf of the respondent – original applicant.

4.1 It is vehemently submitted that in the facts and circumstancesof the case and relying upon the decision of this Court in the case of A

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ARajesh Kumar Daria (supra), the Hon’ble High Court has rightlydirected the Department to give grace marks to the original applicant inthe subject of “Other Taxes” so that he may switch over to generalcategory and/or get the promotion in the general category. It is submittedthat if the grace marks are given to the original applicant, in that case, hemay get the promotion in the general category.B

4.2 It is submitted that some other employees belonging to reservedcategories were awarded five grace marks despite the fact that theywere having the requisite minimum passing marks of 40% meant forSC/ST category.

C4.3 Making above submissions and relying upon the decision ofthis Court in the case of Rajesh Kumar Daria (supra), it is prayed todismiss the present appeal.

5. We have heard the learned counsel for the respective partiesat length. We have also considered and gone through the grace marksDpolicy declared by the Central Board of Direct Taxes (CBDT).

6. The CBDT introduced the grace marks policy with the purposeof enabling marginally failing candidates to pass the examination. At thisstage, it is required to be noted that as per the Rules, 1998, the minimummarks provided for general category candidate was 45% and in theEcase of SC/ST category candidate, it was 40%. In the present case, therespondent – original applicant secured more than 45% marks in eachsubject except the subject of “Other Taxes”. In the subject of “OtherTaxes”, he secured 43% marks. However, the minimum requirementwas 40% so far as the respondent – original applicant is concerned, ashe belonged to ST category and so he passed in his owncategory.FHowever, it is the case on behalf of the original applicant that as theminimum marks required for generalcategory candidate was 45% and ifhe would have been awarded two marks by way of grace in the subjectof “Other Taxes”, in that case, he would have secured the minimum45% marks required for general category candidate and therefore, heGwould have got the promotion in the general category. The aforesaidwas rightly not accepted by the learned Tribunal. The benefit of thegrace marks was not to allow the reserved category candidate to switchover to general category.

6.1 At the cost of repetition, it is observed that the CBDT introducedthe grace marks policy with the purpose of enabling the marginally failingH

candidates to pass in the examination. Once the respondent – originalapplicant passed in his own category, there was no question of allowing/granting him any further grace marks. If the contention on behalf of therespondent – original applicant is accepted, in that case, granting thegrace marks in the aforesaid case would be beyond the object and purposeof granting grace marks and beyond the policy declared by CBDT. Onlyin a case where any candidate belonging to any category is marginallyfailing to pass the examination, he is/was to be allowed the grace marksso as to allow him to obtain the minimum passing marks required andthat too by allowing upto five grace marks. By passing the impugnedjudgment and order, the High Court has not at all appreciated and/orconsidered in its true spirit the object and purpose of grace marks policyintroduced by CBDT. It was never meant for a person, who has passedin his own category and still to allow him further grace marks to enablehim to move to the general category. That was not the object and purposeof the grace marks policy.

7. Now, so far as the reliance placed upon the decision of thisCourt in the case of Rajesh Kumar Daria (supra) followed by theHigh Court is concerned, the said decision is not appliable to the facts ofthe case on hand. The specific grace marks policy was introduced bythe CBDT, which was for marginally failing candidates so as to enablethem to pass the examination. Therefore, the said decision relied uponby the respondent herein – original applicant is not applicable at all.

8. In view of the above and for the reasons stated above, theimpugned judgment and order passed by the Division Bench of the HighCourt is unsustainable and the same deserves to bequashed and setaside and is accordingly quashed and set aside. The judgment and orderpassed by the learned Tribunal dismissing the O.A. stands restored.

Present appeal is accordingly allowed. However, in the facts andcircumstances of the case, there shall be no order as to costs.

Nidhi Jain

Appeal allowed.

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