Allowed

Mukesh Kumar Meena v. Union of India and Ors.

Rajasthan HC20 Feb 2015CW/1542/2015

Case brief

AI extract

What is this about?

A petitioner, a ST member, sought grace marks in a departmental exam where he initially qualified under the general category. The Court held he should first be assessed under general merit; only if he fails then should he be considered for SC/ST relaxation. The petition succeeded.

What did the court decide?

The impugned order of the CAT was set aside; the respondent directed to extend grace marks by treating the petitioner as a general category candidate.

Mukesh Kumar Meena Vs Union of India and… — Pension and Retirement Benefits | Rajasthan HC (2015)

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IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR.

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O R D E R

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D.B. Civil Writ Petition No.1542/2015

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Mukesh Kumar Meena

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v. Union of India & Ors.

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Date of Order :: 20^th February, 2015

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P R E S E N T

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HON'BLE MR.JUSTICE GOVIND MATHUR HON'BLE MISS JUSTICE JAISHREE THAKUR

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Mr. J.K.Kaushik, for the petitioner. Mr. Sunil Bhandari, Caveator.

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BY THE COURT :

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By judgment impugned dated 30.1.2015 learned Central Administrative Tribunal, Jodhpur Bench, Jodhpur dismissed the original application preferred by the petitioner giving challenge to the order dated 1.11.2013 communicating the petitioner that the grace marks could have not been awarded to him being already qualified in the Income Tax Inspector Examination under the category of Scheduled Tribes. To assail validity, correctness and propriety of the judgment referred above, this petition for writ is before us.

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Facts of the case in brief are that the petitioner, a member of Scheduled Tribes, entered in services of the Department of Income Tax being appointed as Lower Division Clerk in the year 1987. He earned promotions to the posts of Tax Assistant, Senior Tax Assistant and

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Office Superintendent. The competent authority with a view to regulate departmental examination for Income Tax Inspectors introduced modified rules for Departmental Examination for Income Tax Inspectors-1998. The rules were made applicable for the departmental examination to be held in 1998 and onwards. The departmental examination under the Rules of 1998 is consisting of six papers viz. Income Tax Law and Assessment, Other Taxes, Book Keeping, Office Procedure, Examination of Accounts and Hindi Test. A candidate securing minimum 45% marks in five subjects except in Hindi is entitled to be declared passed. For the members of Scheduled Castes and Scheduled Tribes the minimum marks required to qualify the examination is 40% of the maximum marks. The Central Board of Direct Taxes adopted a policy of awarding grace marks to those candidates who marginally failed to secure minimum marks/percentage irrespective of their category on falling short of passing upto five marks.

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The petitioner availed departmental examination in the year 2007 and was declared successful in the category of Scheduled Tribes. The statement of marks obtained by him in the departmental examination is as under:-

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Departmental Examination completely if he/she secures a minimum of 45% marks (40% in the case of SC/ST candidate) in the each of the following 5 subjects

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Marks Obtained by % Applicant

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a. Income Tax Law (I & II)-Combined 41+57=98 49 aggregate of 45% (40% in the case of SC/ST candidate)

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b.	Other Taxes	43	43
c.	Book Keeping	45	45
d.	Office Procedure	71	71
e.	Examination of Accounts	83	83
	Total	340	56.67

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From perusal of the statement of marks it is apparent that the petitioner secured more than 45% narks in each subject except the subject of “Other Taxes”. The petitioner though was entitled for five grace marks in the subject aforesaid but were not given to him as he was treated qualified in the category of Scheduled Tribes. Being aggrieved by the same he represented his cause to the respondents but of no consequence. As per the respondents the grace marks could have not been awarded to a person already qualified in reserved category as that would amount to give a chance for betterment.

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Being failed to have positive response the petitioner approached to the Central Administrative Tribunal, Jodhpur Bench, Jodhpur by way of filing an original application that came to be dismissed vide the judgment impugned. Learned Central Administrative Tribunal while dismissing the original application arrived at the conclusion that the grace marks are provided to the candidates of different categories enabling marginally failing candidates to pass the examination. The petitioner original applicant qualified the examination in his category i.e. Scheduled Tribes, therefore, he was not entitled for grace marks.

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The argument advanced before us is that the petitioner though is a member of Scheduled Tribes but at the first instance his case is required to be considered as a person belonging to general category or to say as a person who is not entitled for any reservation and his candidature should have been considered in the category of Scheduled Tribes only on arriving at the conclusion that he cannot be selected/qualified in the examination without extending relaxation available to reserved categories. It is asserted that if the stand taken by the respondents be accepted, then the persons belonging to the reserved categories cannot be considered for qualifying departmental examination on basis of their general merit. To substantiate the argument, learned counsel placed reliance upon several judgments of Hon'ble Supreme Court including in the case of Rajesh Kumar Daria v. Rajasthan Public Service Commission & Ors., reported in (2007)8 SCC 785.

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Per contra, as per learned counsel for the respondents the Department of Income Tax no grace marks could have been extended to the petitioner as he secured more than 40% marks in the subject of 'Other Taxes'. The petitioner is a member of Scheduled Tribes and, therefore, he cannot be treated as a person failed in the subject concerned.

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Heard counsel for the parties.

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In the case of Rajesh Kumar Daria (supra) Hon'ble Supreme court held that “where a vertical reservation is made in favour of a Backward Class under Article 16(4), the

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candidates belonging to such Backward Class, may compete for non-reserved posts and if they are appointed to the non-reserved posts on their own merit, their number will not be counted against the quota reserved for respective Backward Class. Therefore, if the number of SC candidates, who by their own merit, get selected to open competition vacancies, equals or even exceeds the percentage of posts reserved for SC candidates, it cannot be said that the reservation quota for SCs has been filled. The entire reservation quota will be intact and available in addition to those selected under open competition category. (Vide Indra Sawhney, R.K. Sabharwal v. State of Punjab, Union of India v. Virpal Singh Chauhan and Ritesh R. Sah v. Dr.Y.L. Yamul). But the aforesaid principle applicable to vertical (social) reservations will not apply to horizontal (special) reservations”.

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In Union Public Service Commission v. A.Cletus & Ors., C.A.No.9007 & 98/1996 D.D. 09.08.2001, also Hon'ble Supreme Court held that the reserved community candidates who fall within the list of candidates selected for unreserved posts should not be considered as the candidates of reserved community while fixing number of candidates called for the reserved posts.

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From the law laid down by Hon'ble Supreme Court in the cases referred above, it is settled that the “general category” means the category of the candidates who acquires position in order to their merit, irrespective of their belonging to any reserved category, as such, a person belonging to any social reserved category is first required

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to be considered in the “general category” as per his merit. Such a person cannot be excluded from the “general category” on the count that a relaxation/reservation is available to him vertically.

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In view of the legal position discussed above we are of considered opinion that the respondents at the first instance should have considered candidature of the petitioner by treating him a person to whom relaxation is not applicable and while considering his case grace marks should have been extended to him in the subject of 'Other Taxes'. He would have been considered in the category of Scheduled Tribes only on arriving at a conclusion that even by extending grace marks as applicable to the general candidates he failed to qualify the examination without availing relaxation.

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Accordingly, this petition for writ succeeds. The judgment impugned dated 30.1.2015 passed by learned Central Administrative Tribunal, Jodhpur Bench, Jodhpur is set aside. The original application preferred by the petitioner is allowed. The respondents are directed to extend grace marks to the petitioner in the subject of 'Other Taxes' by treating him a person belonging to general category. He shall also be entitled for all other consequential benefits.

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No order to costs.

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(JAISHREE THAKUR),J. (GOVIND MATHUR),J. Mathuria.KK/PS

Mukesh Kumar Meena v. Union of India and Ors.

Case brief

What is this about?

What did the court decide?

Mukesh Kumar Meena v. Union of India and Ors.

Case brief

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What did the court decide?

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