# Sushil Kumar v. State of U.P. & Ors

- **Citation:** (2021) 9 ILRA 1166
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-07-26
- **Case number:** WRIT A No. 7755 of 2021
- **Bench:** Saral Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/sushil-kumar-v-state-of-u-p-ors-47361
- **Pages:** 6

## Headnote

A. Service Law - Appointment - U.P.
Intermediate
Education
Act,
1921
-
Chapter XII, Regulation 20 - Where the
petitioner has filled in wrong marks to
secure selection anyhow, his candidature
deserves to be rejected. (Para 22)

Object of awarding grace marks - The
award of grace marks is in the nature of a
concession, and there can be no doubt that it
does result in diluting academic standards. The
object underlying the grant of grace marks is to
remove the real hardship to a candidate who
has otherwise shown good performance in the
academic field but is losing one year of his
scholastic career for the deficiency of a mark or
so in one or two subjects, while on the basis of
his overall performance in other subjects, he
deserves to be declared successful. (Para 15)

However, a rule for the award of grace
marks must be construed strictly so as to
ensure that the minimum standards are
not allowed to be diluted beyond the limit
specifically laid down by the appropriate
authority. It is only in a case where the
language of the statute is absolutely clear that
the claim for the award of grace marks can be
sustained. (Para 15)

The grace marks are only notional and are
not added in the aggregate to change the
percentage
-
The
contention
of the
petitioner that Regulation 20 of Chapter
XII of the Act, 1921 does not put any bar
of adding grace marks awarded to the
petitioner in the actual marks obtained by
him is misconceived as the purpose of
awarding grace mark to a candidate is to give
him the benefit of promotion in the next class.
The grace marks have not been secured by the
petitioner on merit and therefore, they cannot
be included in the actual marks obtained by him
in the subjects in which the grace mark has
been awarded to him. Moreover, petitioner
never objected the Board for not including the
grace marks awarded to him, therefore, he
cannot be allowed to raise this contention at this
stage that the Board has committed an error.
(Para 13, 14, 16)

Contention of the petitioner that the
advertisement does not stipulate that
grace marks are to be excluded while
filling total marks secured by a candidate
is misconceived for two reasons; there is no
pleading in the writ petition w.r.t the said
contention nor the advertisement has been
enclosed by the petitioner with the writ petition
to buttress the aforesaid submission. Secondly,
the grace marks are notional and have been
awarded with an object that a candidate should
not lose one year. (Para 23)

The petitioner has not stated about the quality
point marks secured by the last selected
candidate. Strangely, the petitioner without
knowing the actual quality point marks
secured by the last selected candidate has
made the statement that the petitioner's
aggregate is much more than the last
selected candidate. (Para 17 to 21)

Writ petition dismissed. (E-4)

Precedent followed:
9 All Sushil Kumar Vs. State of U.P. & Ors.
1167

## Text

1166 INDIAN LAW REPORTS ALLAHABAD SERIES

38. Thus, for the reasons given above,
the writ petition lacks merit and is
accordingly, dismissed with no order as to
costs.
----------
(2021)09ILR A1166
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 26.07.2021

BEFORE

THE HON'BLE SARAL SRIVASTAVA, J.

WRIT A No. 7755 of 2021

Sushil Kumar ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Shantanu Khare, Sri Siddharth Khare,
Sri Alok Khare

Counsel for the Respondents:
C.S.C., Sri Arun Kumar

A. Service Law - Appointment - U.P.
Intermediate
Education
Act,
1921
-
Chapter XII, Regulation 20 - Where the
petitioner has filled in wrong marks to
secure selection anyhow, his candidature
deserves to be rejected. (Para 22)

Object of awarding grace marks - The
award of grace marks is in the nature of a
concession, and there can be no doubt that it
does result in diluting academic standards. The
object underlying the grant of grace marks is to
remove the real hardship to a candidate who
has otherwise shown good performance in the
academic field but is losing one year of his
scholastic career for the deficiency of a mark or
so in one or two subjects, while on the basis of
his overall performance in other subjects, he
deserves to be declared successful. (Para 15)

However, a rule for the award of grace
marks must be construed strictly so as to
ensure that the minimum standards are
not allowed to be diluted beyond the limit
specifically laid down by the appropriate
authority. It is only in a case where the
language of the statute is absolutely clear that
the claim for the award of grace marks can be
sustained. (Para 15)

The grace marks are only notional and are
not added in the aggregate to change the
percentage
-
The
contention
of the
petitioner that Regulation 20 of Chapter
XII of the Act, 1921 does not put any bar
of adding grace marks awarded to the
petitioner in the actual marks obtained by
him is misconceived as the purpose of
awarding grace mark to a candidate is to give
him the benefit of promotion in the next class.
The grace marks have not been secured by the
petitioner on merit and therefore, they cannot
be included in the actual marks obtained by him
in the subjects in which the grace mark has
been awarded to him. Moreover, petitioner
never objected the Board for not including the
grace marks awarded to him, therefore, he
cannot be allowed to raise this contention at this
stage that the Board has committed an error.
(Para 13, 14, 16)

Contention of the petitioner that the
advertisement does not stipulate that
grace marks are to be excluded while
filling total marks secured by a candidate
is misconceived for two reasons; there is no
pleading in the writ petition w.r.t the said
contention nor the advertisement has been
enclosed by the petitioner with the writ petition
to buttress the aforesaid submission. Secondly,
the grace marks are notional and have been
awarded with an object that a candidate should
not lose one year. (Para 23)

The petitioner has not stated about the quality
point marks secured by the last selected
candidate. Strangely, the petitioner without
knowing the actual quality point marks
secured by the last selected candidate has
made the statement that the petitioner's
aggregate is much more than the last
selected candidate. (Para 17 to 21)

Writ petition dismissed. (E-4)

Precedent followed:
9 All Sushil Kumar Vs. State of U.P. & Ors.
1167
1. Maharashtra State Board of Secondary &
Higher Education Vs Amit (2002) 6 SCC 153
(Para 15)

2. Rahul Kumar Vs St. of U.P. & ors. in Writ
Petition (Civil) No. 378 of 2021 (Para 22)

(Delivered by Hon'ble Saral Srivastava, J.)

1. Heard Sri Siddharth Khare, learned
counsel for the petitioner, learned Standing
Counsel for respondent nos.1 & 2, and Sri
Arun
Kumar
learned
counsel
for
respondent no.3.

2. The petitioner by means of the
present writ petition has prayed for the
following relief:-

"(a). a writ, order or direction of
a
suitable
nature
commanding
the
respondents to forthwith grant appointment
to the petitioner as an Assistant Teacher in
a Junior Basic School in pursuance to his
selection in Assistant Teacher Recruitment
Examination-2019, within a period to be
specified by this Hon'ble Court, in
accordance with the district allotted to the
petitioner;

(b). a writ, order or direction of a
suitable
nature
commanding
the
respondents to permit the petitioner to
function as an Assistant Teacher in a
Junior Basic School under the respondents
and to pay the petitioner his regular
monthly salary on the said post regularly
every month;

(c). any other writ, order or
direction as this Hon'ble Court may deem fit
and proper in the circumstances of the case;

(d). award cost of the petition to
be paid to the petitioner."

3. The petitioner has appeared in the
selection of Assistant Teacher Recruitment
Examination-2019. The petitioner was
selected in the written examination and was
called for counseling. The petitioner
appeared in the counseling. According to
the petitioner, his candidature was rejected
on the ground that he has given wrong
marks of the High School in the application
form. In the aforesaid backdrop, he has
prayed for the aforesaid relief.

4. Learned counsel for the petitioner
submits that in the marks sheet downloaded
from the website of Madhyamik Shiksha
Parishad, Uttar Pradesh, Prayagraj, it is
evident that the grace marks which has
been awarded to the petitioner in the
subjects of Mathematics and Science have
been included in the actual marks obtained
by him in those subjects. Accordingly, he
submits that if the grace marks are added in
actual marks, he has secured 328 marks
which have been correctly filled in by him
in the application form. He submits that
Regulation 20 of Chapter XII of the U.P.
Intermediate
Education
Act,
1921
(hereinafter referred to as 'the Act, 1921')
does not preclude the grace marks awarded
to a candidate to be added in the marks
secured by a candidate in a subject,
therefore, in the original marks sheet issued
by
the
Board
of
High
School
&
Intermediate Education, U.P., the grace
marks ought to have been added in the
marks secured by petitioner in the subjects
of Mathematics and Science.

5. He further submits that petitioner
has correctly filled in the marks secured by
him in the application form. He further
contends that even if the quality point
marks are calculated treating the petitioner
to have secured 325 marks, the aggregate
of the petitioner would be 67.30 which is
1168 INDIAN LAW REPORTS ALLAHABAD SERIES
much more than the last selected candidate
who is allotted district Sitapur. Thus, he
submits that the authorities have acted
illegally in rejecting the candidature of the
petitioner.

6. He lastly contends that there is no
stipulation in the advertisement that grace
marks are not to be included while filling
up the marks obtained in High School, and
therefore,
for
this
reason
also,
the
respondents-authorities have acted illegally
in
rejecting
the
candidature
of
the
petitioner.

7. Per contra, learned counsel for the
respondents would contend that the marks
sheet which has been relied upon by the
petitioner, Annexure 8 to the writ petition,
is a provisional marks sheet wherein, in
paragraph
1
under
the
heading
'DISCLAIMER', it is mentioned that this is
not the original marks sheet. He has further
placed reliance upon paragraph 3 of the
'DISCLAIMER' clause to contend that it is
clearly mentioned that neither Board of
High School & Intermediate Education,
Uttar Pradesh, Prayagraj nor service
provider is responsible for any inadvertent
error that may have crept into the
scoreboard/result being published on the
website of Uttar Pradesh Madhyamik
Shiksha Parishad. He further submits that
this is a provisional marks sheet and the
marks recorded therein are not final and
conclusive.

8. He submits that the marks recorded
in the original marks sheet, Annexure 3 to
the writ petition, are conclusive and final.
He submits that there is no pleading in the
writ petition that petitioner has ever
objected that grace marks awarded to him
in mathematics & science subjects be
added in actual marks secured by him or
has submitted an application for correction
in the original marks sheet, therefore, the
petitioner cannot contend now that there is
discrepancy in the original marks sheet
issued by the Board of High School &
Intermediate Education, U.P. He further
placed reliance upon paragraph 4 of the
Government Order dated 04.12.2020 to
contend that in the instant case, petitioner
has filled in more marks than obtained i.e.
328 instead of 325 marks with a purpose to
obtain selection anyhow; he submits that
paragraph 4 of the Government Order dated
04.12.2020 is explicit and provides that in
such a case, the candidature of a candidate
shall be rejected.

9. He submits that in this view of the
fact, this is not a fit case where this Court
should exercise its power under Article 226
of the Constitution of India.

10. I have considered the rival
submissions of the parties and perused the
record.

11. Learned counsel for the petitioner
has
relied
upon
the
marks
sheet
downloaded
from
the
website
of
Madhyamik
Shiksha
Parishad,
Uttar
Pradesh, Prayagraj, Annexure 8 to the writ
petition in support of his contention that
petitioner has supplied correct marks of
High School in the application form. At
this point, it would be apt to refer to the
'DISCLAIMER' clause of the mark sheet
which is being extracted hereinbelow:-

"DISCLAIMER

1. This is a Computer Generated
Provisional Score Card. This result has
been provisionally announced. The results
published on website are not immediate
information to the examinees. These cannot
9 All Sushil Kumar Vs. State of U.P. & Ors.
1169
be treated as original mark sheets. Original
mark sheets are to be issued by the Board
separately.

2. Date provided by Board of
High School & Intermediate Education
Uttar Pradesh, Prayagraj.

3. Neither Board of High School
& Intermediate Education, Uttar Pradesh,
Prayagraj
nor
service
provider
is
responsible for any inadvertent error that
may have crept in the score board/results
being published on UTTAR PRADESH
MADHYAMIK
SHIKSHA
PARISHAD
(UPMSP) Website.

4. In case of any Clarification,
Please
contact
UTTAR
PRADESH
MADHYAMIK SHIKSHA PARISHAD."

12. Paragraph 1 of the DISCLAIMER
clause
unequivocally
declares
that
computer-generated provisional scorecard
cannot be treated as original marks sheet.
The original marks sheet is to be issued by
the Board separately. Paragraph 3 of the
DISCLAIMER clause provides that neither
Board of High School & Intermediate
Education, Uttar Pradesh, Prayagraj nor
service provider is responsible for any
inadvertent error that may have crept in the
score board/result being published on the
website
of
UTTAR
PRADESH
MADHYAMIK SHIKSHA PARISHAD
(UPMSP).

13. A perusal of paragraph 3 of the
DISCLAIMER clause clearly shows that
the marks sheet, Annexure 8 to the writ
petition, which has been uploaded from the
website of Uttar Pradesh Madhyamik
Shiksha Parishad, Prayagraj was not
uploaded by the Board of High School and
Intermediate Education, Uttar Pradesh,
Prayagraj. It is also clear from paragraph 1
of the DISCLAIMER clause that the
computer-generated
marks
sheet
is
provisional and not a final marks sheet. The
marks which have been mentioned in the
mark sheet issued by the Board of High
School and Intermediate Education, Uttar
Pradesh,
Prayagraj
in
respect
of
Mathematics and Science subject do not
include the grace marks. There is nothing
on record to show that petitioner has ever
objected the Board for not including the
grace marks awarded to him in the subjects
of Mathematics and Science, therefore, the
petitioner cannot be allowed to raise this
contention at this stage that the Board has
committed error in not including the grace
marks awarded to him in Mathematics and
Science subjects.

14. So far as the contention of learned
counsel for the petitioner to Regulation 20
of Chapter XII of Intermediate Education
Act, 1921 is concerned, it is worth
mentioning that the object of the grace
marks is to give certain benefit to a
candidate to promote him to the next class.
The grace marks have not been secured by
the petitioner and therefore, they cannot be
included in the actual marks obtained by
him in the subjects in which the grace mark
has been awarded to him. The grace marks
are only notional and are not added in the
aggregate to change the percentage.

15. The Apex Court in the case of
Maharashtra State Board of Secondary &
Higher Secondary Education Vs. Amit
(2002) 6 SCC 153 has elaborated the object
for awarding grace marks. The relevant
extract of paragraph 6 of the said judgment
is being reproduced hereinbelow:-

"6...However, before adverting to
the provisions of the aforesaid Regulation,
1170 INDIAN LAW REPORTS ALLAHABAD SERIES
we consider it appropriate to notice the
principles which the court has to keep in
mind while dealing with a case of this
nature where grace marks are claimed
under the relevant Regulations. It cannot
be disputed that the academic standards
are
laid
down
by
the
appropriate
authorities which postulate the minimum
marks that a candidate has to secure before
the candidate can be declared to have
passed the examination. The award of
grace marks is in the nature of a
concession, and there can be no doubt that
it
does
result
in diluting
academic
standards. The object underlying the grant
of grace marks is to remove the real
hardship to a candidate who has otherwise
shown good performance in the academic
field but is losing one year of his scholastic
career for the deficiency of a mark or so in
one or two subjects, while on the basis of
his overall performance in other subjects,
he deserves to be declared successful. The
appropriate authorities may also provide
for grant of grace marks to a candidate
who has taken part in sports events etc.,
considering the fact that such candidates
who have obtained a level of proficiency in
any particular game or event may have
devoted considerable time in pursuit of
excellence in such game or event. However,
a rule for the award of grace marks must
be construed strictly so as to ensure that
the minimum standards are not allowed to
be diluted beyond the limit specifically laid
down by the appropriate authority. It is
only in a case where the language of the
statute is absolutely clear that the claim for
the award of grace marks can be sustained.
Normally the court shall be slow to extend
the concession of grace marks and grant a
benefit where none is intended to be given
by the appropriate authority. (See Board of
School Education, Haryana Vs. Arun Rathi
1994 (2) SCC 526).

16. Therefore, the contention of
learned counsel for the petitioner that
Regulation 20 of Chapter XII of the Act,
1921 does not put any bar of adding grace
marks awarded to the petitioner in the
actual
marks
obtained
by
him
is
misconceived for the reason that the
purpose of awarding grace mark to a
candidate is to give him the benefit of
promotion in the next class. Accordingly,
the aforesaid contention of learned counsel
for the petitioner is misconceived.

17. So far as the contention of learned
counsel for the petitioner that if the merit is
calculated based on marks mentioned in the
original High School marks sheet i.e. 325
even then, petitioner would qualify as his
quality point marks would be 67.30, and
therefore, it is wrong to say that petitioner
has filled in wrong marks in the application
form with an object to obtain selection by
any means.

18. Learned counsel for the petitioner
has invited the attention of the Court to
paragraph 20 of the writ petition which is
being extracted hereinbelow:-

"20. That even in case 3 marks
are reduced from the total of the marks
secured by the petitioner in High School
Examination even then the quality point
marks secured by the petitioner aggregate
67.30 which is much more than the last
candidate selected and allotted district
Sitapur as a district of his appointment."

19. A perusal of paragraph 20 of the
writ petition shows that a bald averment
has been made about the fact that even if
three marks are reduced from the actual
marks secured by the petitioner in the High
School, the aggregate quality point marks
9 All Sunita Kumari Patel Vs. State of U.P. & Ors.
1171
of the petitioner would be 67.30 which is
more than the last selected candidate.

20. The petitioner has not stated in the
writ petition about the quality point marks
secured by the last selected candidate.
Strangely, the petitioner without knowing
the actual quality point marks secured by
the last selected candidate has made the
statement in paragraph 20 of the writ
petition that the petitioner's aggregate is
much more than the last selected candidate.

21. Since the averments made in
paragraph 20 of the writ petition are bald
and vague, therefore, no reliance can be
placed upon it.

22. It is further relevant to mention
that Apex Court in the case of Rahul
Kumar Vs. State of Uttar Pradesh &
Others in Writ Petition (Civil) No.378 of
2021 while interpreting Government Order
dated 04.12.2020 has held that where the
petitioner has filled in wrong marks to
secure selection anyhow, his candidature
deserves to be rejected.

23. So far as the contention of learned
counsel
for
the
petitioner
that
the
advertisement does not stipulate that grace
marks are to be excluded while filling total
marks secured by a candidate, the said
contention is misconceived for two reasons;
there is no pleading in the writ petition in
respect of the said contention nor the
advertisement has been enclosed by the
petitioner with the writ petition to buttress
the aforesaid submission. Secondly, the
grace marks are notional and have been
awarded with an object that a candidate
should not lose one year and therefore, the
concession given by the examination body
to the candidate for promotion cannot be
added to the actual marks obtained by the
candidate as the grace marks are not
secured by the petitioner on merit. It is
worth pointing out that if the grace marks
are allowed to be added to the actual marks
obtained by a candidate, that would put
other candidates at disadvantage, who have
secured and maintained high educational
standards by securing higher marks by their
sheer hard work and determination.

24. Thus, for the reasons given above,
the writ petition lacks merit and is
accordingly, dismissed. There shall be no
order as to costs.
----------
(2021)09ILR A1171
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 10.08.2021

BEFORE

THE HON'BLE YASHWANT VARMA, J.

WRIT A No. 7806 of 2021

Sunita Kumari Patel ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Amit Dubey

Counsel for the Respondents:
C.S.C., Sri Rajesh Yadav

A. Service Law - Appointment - Benefits
of reservation cannot be obtained by
virtue of marriage - The recognition of a
lady
as
a
member
of
a
backward
community in view of her marriage would
not be relevant for the purpose of
entitlement to reservation under Article
16(4) of the Constitution for the reason
that she as a member of the forward
caste, had an advantageous start in life
and a marriage with a male belonging to a
backward class would not entitle her to