Order

1. Leave granted.

2. Heard both sides.

3. The appellants had been working as Telecom Technical Assistants. The next promotion of these appellants was to the post of Junior Telecom Officer (JTO). The promotion to the post of JTO was regulated by a screening test. 35% of JTOs were entitled to be promoted on the basis of a screening test to be conducted by the Department. The appellants herein and others participated in the screening test held on 30.4.2000. The qualifying percentage of marks in the screening test for getting promotion to the post of JTO was 40% for general candidates and 33% for the candidates belonging to Scheduled Castes and Scheduled Tribes. The appellants before us were not successful in qualifying the screening test. They approached the Central Administrative Tribunal, Ernakulam Bench contending that the screening test was not done properly and several objective-type questions were asked in the screening test which were confusing and they were not in accordance with the model question paper distributed earlier to them. The Tribunal considered the matter and gave a direction on 11.4.2002 directing the present appellants to submit a representation to the Department and the Department was directed that the representation submitted by the appellants herein shall be considered and appropriate orders thereon shall be passed by grant of grace marks or other reliefs as the competent authority deems fit and the representation was directed to be disposed of within a period of two months. The appellants herein filed a representation but the same was rejected. Thus they filed an application for contempt and in the meanwhile the first respondent passed an order and the representation was considered in detail and it was found that some of the questions were not in accordance with the model question paper prepared by the Department holding that the candidates would have experienced some difficulty on account of variation in the model question paper prepared for the screening test held on 30.4.2000 for Mathematics and Physics and it was held that after careful consideration of all the aspects of the matter and complying with the judgment of the order of the Central Administrative Tribunal, the then Chief General Manager, Telecom awarded 8 marks as grace marks for the candidates.

4. The order passed in favour of the appellants herein was challenged by Respondents 4 to 10 contending that the appellants were not entitled to get the grace marks as there was no difficulty in the screening test and 41% of the candidates had passed the same test and the appellants were not entitled to get the grace marks. The Division Bench went into the question and held that the Department was not justified in granting grace marks. The decision of the Division Bench is under challenge before us.

5. We have heard the appellants’ counsel and the counsel for the respondents. The Chief General Manager in the order passed on 18.11.2000 has given certain reasons as to why the grace marks had to be given to the candidates. There is not much dispute regarding these facts and we are also told that in respect of similar screening test other candidates had also been given grace marks and two proceedings passed by the same authority have been produced before us. One is order dated 27.1.2003 passed by the then Assistant General Manager and the other of 17.5.2002 and they were all promoted to the cadre of JTO.

6. Having regard to the peculiar facts of the case, we are of the view that the appellants were entitled to be treated similarly. We are inclined to interfere with the order passed by the Division Bench. Counsel for Respondents 4 to 10 submitted that they have passed the test securing the qualifying marks and the appellants are not entitled to get promotion and even if they get promoted they shall not be placed above Respondents 4 to 10.

7. In the result, we set aside the judgment of the Division Bench and direct the first respondent to treat the appella