DINESHKUMAR MOHANLAL GAJJAR Vs. STATE OF GUJARAT

JUDGEMENT

(1.) This petition is filed by the petitioner for quashing and setting aside the order passed by the respondent-Authorities, refusing to give 6 marks of grace in Paper 1 of Pre-Service Training Examination. A prayer is also made to set aside an order, terminating his services and by issuing necessary direction, to reinstate the petitioner in service as Junior Clerk by granting continuity in service, with all consequential benefits, including seniority, increment, arrears of salary, and other benefits.

(2.) It is the case of the petitioner that he is a handicapped person. In 1984, he was called for interview for the post of Junior Clerk and was selected. He was appointed to the post of Clerk in 1987 in the pay scale of Rs. 950-1500. He successfully completed period of probation. The petitioner had to clear Pre-Service Training Examination in three trials. He appeared in the said Examination in 1989, 1990 and 1991. He, however, failed in all the three examinations. Hence, in accordance with the relevant Rules, the services of the petitioner came to be terminated in 1992. It appears that, after termination, he made an application to grant him fourth chance, i.e., a grace chance. The request made by the petitioner was granted by an order dated 17/10/1994 and the petitioner was allowed to appear at the fourth chance, though meanwhile, his services had already been terminated. The question in this petition relates to passing of Pre-Service Training Examination at the fourth trial. It is an undisputed fact that the petitioner appeared in the examination held in November, 1994 and he obtained following marks in three answer papers :-

(3.) Mr. Padival, learned Counsel for the petitioner, raised various contentions. He submitted that the respondent-Authorities have committed an error of law apparent on the face of the record in not declaring the petitioner successful at Pre- Service Training Examination. He submitted that misconstruing the relevant provisions of various Circulars and Resolutions, the Authorities held that the petitioner could not get six marks. In one of such Circulars, it was mentioned that if the question paper is of 100 marks, but 10 marks are earmarked for good handwriting and for keeping answer paper neat and clean, a candidate need not get 50 marks for being declared as successful. It would be sufficient if he obtains 45 marks. If a question paper is of 100 marks, without any mark being earmarked for good handwriting and for keeping the answer paper neat and clean, a candidate must get 50% marks for being declared as successful. In this case, according to the learned Counsel for the petitioner, the question paper was of 100 marks, but 10 marks were earmarked for good handwriting and for keeping the answer paper neat and clean. In question paper No. 2 and 3, obviously, the petitioner was declared successful, inasmuch as he got 54 marks in each of them. In question paper No. 1, he obtained only 39 marks. As per the above Circular, he ought to have obtained 45 marks. Thus, there was a deficit of 6 marks. In Resolution dated 30/03/1989, it was stated that in different departmental examinations, many candidates fail due to shortfall of few marks. A question was under the consideration of Government for awarding grace marks. After careful consideration, the Government decided that if such candidates would be failing only in one paper, they would be given maximum 5 marks in that paper. Mr. Bambhania, learned Additional Government Pleader, submitted that the said Circular does not apply to the facts of the present case, as it is applicable to departmental examinations only and admittedly, the petitioner's case is not of departmental examination but of Pre-Service Training Examination. I am not expressing final opinion as to whether or not the said Circular applies in case of Pre-Service Training Examination, as, in my view, even if it is assumed in favour of the petitioner that the said Circular can be invoked, it cannot carry the matter further because, at the most, the petitioner would get five marks, but he would fail even in that case.