The respondent Commission issued an advertisement on 19.12.2018 for filling up various posts including 51 posts of Junior Engineer (Electricity). The petitioner qualified Diploma in Electrical Engineering, but as against ...
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High Court of H.P.IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA
CWP No. 3275/2020
Reserved on: 21.9.2020
Decided on : 24.9.2020
Atul …..Petitioner
Versus
Himachal Pradesh Staff Selection Commission .....Respondent
Coram:
The Hon’ble Mr. Justice Tarlok Singh Chauhan, Judge .
The Hon’ble Ms. Justice Jyotsna Rewal Dua, Judge.
Whether approved for reporting?
1 Yes
For the Petitioner: Mr. Kul Bhushan Khajuria, Advocate.
For the Respondents: Mr. Sanjeev Kumar, Advocate.
(Through Video Conferencing)
_____________________________________________________________________
Justice Tarlok Singh Chauhan, Judge (oral)
Whether, in absence of any provision, is it open for the
Court to order roundingoff of marks to meet eligibility criteria?
2 The respondentCommission issued an advertisement
on 19.12.2018 for filling up various posts including 51 posts of
Junior Engineer (Electricity). The petitioner qualified Diploma in
Electrical Engineering, but as against requirement of 55 marks
mentioned in the advertisement, had secured 54.6% marks. The
request made by the petitioner for roundingoff of 54.6% marks to
1
Whether reporters of the local papers may be allowed to see the judgment? Yes.
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55% marks was rejected by the respondent constraining him to file
the instant petition for grant of following substantive reliefs:
“A. That the impugned rejection communicated through
communication dated 5.3.2020 may kindly be quashed and
set aside.
B. That the respondent Board may kindly be directed to
consider the candidature of the petitioner for the post of
Junior Engineer (Electrical) on the basis of merit.
C. That the respondent Commission may kindly be directed
to disclose the name and address of last selected candidate
from the General (UR) category so that he can be arrayed as
party respondent in the present case.”
3 On 31.8.2020, the respondent was put to notice
directing its counsel to obtain instructions.
4 The instructions as obtained have been placed on
record, which reveal that the case of the petitioner was not
considered as he failed to meet the essential qualification and in
absence of power to roundoff of marks, such course was not open
to the respondent.
5 We have heard learned counsel for the parties and have
also gone through the material placed on record.
6 At the outset, it needs to be noticed that essential
qualification for the post in question, as prescribed in Recruitment
and Promotional Rules and notified in the advertisement, is that a
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candidate must be in possession of full time diploma in Electrical
Engineering from a recognized Institution/University with 55%
marks.
7 This position is conceded and the only contention put
forth by the petitioner, after placing reliance on certain judgments
of the Hon'ble Supreme Court and some High Courts, is that since
Diploma was only for the purpose of eligibility and not for the
purpose of qualifying marks in the selection, therefore, 54.6%
marks obtained by him in Diploma in Electrical Engineering ought
to have been roundedoff.
8 In support of such submission, reliance is placed upon
the judgment of the Hon'ble Supreme Court in State of Punjab
and anr. Vs. Asha Mehta (1997) 11 SCC 410 , wherein it was
observed as under:
“1. The question whether 32.5% could be rounded off to
33% is purely an arithmetical calculation, a procedure
which the public Service Commission in fairness has been
adopting in all other cases. The High Court had noticed
this aspect of the matter and also relied upon earlier
precedents in support thereof. In that view of the matter, we
do not think that it is a fit case for interference under
Article 136 of the Constitution.”
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High Court of H.P.4
And in State of U.P. and anr. Vs. Pawan Kumar
Tiwari and ors., (2005) 2 SCC 10, wherein it was observed as
under:
“6. The High Court has found mainly two faults with the
process adopted by the State Government. First, the figure
of 46.50 should have been rounded off to 47 and not to 46;
and secondly, in the category of freedom fighters and ex
servicemen, total 3 posts have been earmarked as
horizontally reserved by inserting such reservation into
general quota of 46 posts which had the effect of pushing
out of selection zone three candidates from merit list of
general category.
7. We do not find fault with any of the two reasonings
adopted by the High Court. The rule of rounding off based
on logic and common sense is: if part is onehalf or more,
its value shall be increased to one and if part is less than
half then its value shall be ignored. 46.50 should have been
rounded off to 47 and not to 46 as has been done. If 47
candidates would have been considered for selection in
general category, the respondent was sure to find a place in
the list of selected meritorious candidates and hence
entitled to appointment.”
9 Reliance is also sought to be placed on the judgments
rendered by the Hon'ble Madras High Court in W.P. No.
10212/2001, titled M. Ramprakash vs. Pondicherry University
and ors., dated 23.3.2009 and in W.A. No. 1582/2007, titled
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The Director of Teacher Education, Research and Training &
Ors. vs. Joseph Chellamuthu Teacher Training, dated
23.3.2009.
10 No doubt, in Pawan Kumar Tiwari and Asha Mehta
cases (supra), the Hon'ble Supreme Court have held that if friction
is 0.5 and above, it has to be read as 1, however in Bhanu Pratap
vs. State of Haryana and ors., (2011) 15 SCC 304 , where the
petitioner therein who had secured 508 marks out of total 1020
marks i.e. 49.8% marks and since the marks obtained by him were
short of 50% by just two marks, had sought rounding off to the
qualifying marks of 50%, having remained unsuccessful before the
learned Single Bench and Division Bench approached the Hon'ble
Supreme Court with a prayer to roundoff of the marks, but such
plea was rejected by the Hon'ble Supreme Court by observing as
under:
“14.The aforesaid submissions of the counsel appearing for
the appellant were however refuted by counsel appearing for
the respondents by submitting that the respondents have
strictly and minutely followed and complied with the Rules
which are statutory in nature and, therefore, the present
appeal has no merit at all. He also submitted that there
cannot be addition of any marks unless the same is
specifically permitted and provided either under the Rules
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or in the advertisement and, therefore, there was no
illegality or arbitrariness in the selection in question.
15. In the light of the records placed before us we have
considered the aforesaid submissions of the counsel
appearing for the parties. The relevant Rules have already
been extracted above. A bare reading of the aforesaid rules
would make it crystal clear that in order to qualify in the
written examination a candidate has to obtain at least 33%
marks in each of the papers and at least 50% qualifying
marks in the aggregate in all the written papers.
16. The further mandate of the rules is that a candidate
would not be considered as qualified in the examination
unless he obtains at least 50% marks in the aggregate
including vivavoce test. When emphasis is given in the
Rules itself to the minimum marks to be obtained making it
clear that at least the said minimum marks have to be
obtained by the concerned candidate there cannot be a
question of relaxation or rounding off as sought to be
submitted by the counsel appearing for the appellant.
17.There is no power provided in the statute nor any such
stipulation was made in the advertisement and also in the
statutory Rules permitting any such rounding off or giving
grace marks so as to bring up a candidate to the minimum
requirement. In our considered opinion, no such rounding
off or relaxation was permissible. The Rules are statutory in
nature and no dilution or amendment to such Rules is
permissible or possible by adding some words to the said
statutory rules for providing or giving the benefit of
rounding off or relaxation.
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18. We may also draw support in this connection from a
decision of this Court in District Collector & Chairman,
Vizianagaram Social Welfare Residential School Society,
Vizianagaram and Another. v. M. Tripura Sundari Devi
reported in (1990) 3 SCC 655. In the said judgment this
Court has laid down that:
when an advertisement mentions a particular qualification
and an appointment is made in disregard of the same then
it is not a matter only between the appointing authority and
the appointee concerned. The aggrieved are all those who
had similar or even better qualifications than the appointee
or appointees but who had not applied for the post because
they did not possess the qualifications mentioned in the
advertisement.”
11 This issue has been recently considered by the Hon'ble
Supreme Court, in detail, in Taniya Malik vs. Registrar General
of the High Court of Delhi, (2018) 14 SCC 129 . It shall be
apposite here to refer relevant observations as contained in paras
22 and 23 of the judgment, which read as under:
[22] With regard to question as to rounding off of the marks,
in our opinion, when a particular aggregate is prescribed for
eligibility, a person must meet the criteria without
relaxation. It is not permissible to enhance the marks by
rounding off method to make up the minimum aggregate.
[23] This Court, in The Registrar, Rajiv Gandhi University of
Health Sciences, Bangalore vs. G. Hemlatha and Ors., 2012
8 SCC 568, held as impermissible the roundingoff of
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eligibility criteria in relation to qualifying examination for
admission to the PG Course in MSc (Nursing). Relying upon
the decision rendered in Orissa Public Service Commission
& Anr. vs. Rupashree Chowdhary and Anr., 2011 8 SCC
108, this Court observed:
"8. In Orissa Public Service Commission and Anr. v.
Rupashree Chowdhary and Anr, 2011 8 SCC 108 this Court
in somewhat similar fact situation considered whether the
eligibility criteria could be relaxed by the method of
roundingoff. The Orissa Public Service Commission
published an advertisement inviting applications from
suitable candidates for the Orissa Judicial Service
Examination, 2009 for direct recruitment to fillup 77 posts
of Civil Judges (JD). Pursuant to the advertisement, the first
Respondent therein applied for the said post. She took the
preliminary written examination. She was successful in the
said examination. She, then, took the main written
examination. The list of successful candidates, who were
eligible for interview, was published in which the first
Respondent's name was not there. She received the mark
sheet. She realized that she had secured 337 marks out of
750 i.e. 44.93% of marks in the aggregate and more than
33% of marks in each subject.
9. As per Rule 24 of the Orissa Superior Judicial Service
and Orissa Judicial Service Rules, 2007 (for short "the
Orissa Rules"), the candidates who have secured not less
than 45% of the marks in the aggregate and not less than a
minimum of 33% of marks in each paper in the written
examination should be called for viva voce test. Since the
first Respondent therein had secured 44.93% marks in
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aggregate she was not called for interview/viva voce. The
first Respondent approached the Orissa High Court. The
High Court allowed the writ petition. The appeal from the
said order was carried to this Court.
10. After considering the Orissa Rules, this Court in
Rupashree Chowdhary, 2011 8 SCC 108 held that Rule 24
thereof made it clear that
"in order to qualify in the written examination a candidate
has to obtain a minimum of 33% marks in each of the
papers and not less than 45% marks in the aggregate in all
the written papers in the main examination." (SCC p. 111,
para 10)
This Court observed that when emphasis is given in the rule
itself to the minimum marks to be obtained, there can be no
relaxation or roundingoff. It was observed that no power
was provided in the statute/rules permitting any such
roundingoff or giving grace marks. It was clarified that:
(SCC p. 112, para 10)
"10 . The [Orissa] Rules are statutory in nature and no
dilution or amendment to such rules is permissible or
possible by adding some words to the said statutory rules
for giving the benefit of roundingoff or relaxation."
11. In our opinion, the ratio of this judgment is clearly
applicable to the facts of this case. Judgment of the Full
Bench of Allahabad High Court in Vani Pati Tripathi v.
Director General, Medical Education and Training and Ors,
2003 AIR(All) 164 and judgment of the Full Bench of Punjab
and Haryana High Court in Kuldip Singh, Legal Assistant,
Punjab Financial Corporation v. State of Punjab and Ors,
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1997 117 PunLR 1, were cited before us because they take
the same view. However, in view of the authoritative
pronouncement of this Court in Orissa Public Service
Commission , it is not necessary for us to discuss the said
decisions.
12. No provision of any statute or any rules framed
thereunder has been shown to us, which permits
roundingoff of eligibility criteria prescribed for the qualifying
examination for admission to the PG course in M.SC
(Nursing). When eligibility criteria is prescribed in a
qualifying examination, it must be strictly adhered to. Any
dilution or tampering with it will work injustice on other
candidates. The Division Bench of the High Court erred in
holding that learned Single Judge was right in roundingoff
of 54.71% to 55% so as to make Respondent 1 eligible for
admission to PG course. Such roundingoff is
impermissible."
12 Apart from above, it has been consistent view of this
Court that in absence of any Rules providing for roundingoff of
marks, the same is impermissible.
13 Reference in this regard can conveniently be made to a
judgment rendered by Division Bench of this Court, of which one
of us (Justice Tarlok Singh Chauhan) was a member, in Devender
Kumar vs. State of H.P. and ors., ILR 2015(1) HP 479 , wherein
it was observed as under:
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“By the medium of the present writ petition, the petitioner
has prayed for the quashing and setting aside of Annexures
PH and PJ, (letters dated 9th September, 2014 and 22
nd
September, 2014, respectively), to the extent the same
pertain to the petitioner, whereby the petitioner has been
called upon to undergo two years special training instead of
six months, on the grounds taken in the memo of the writ
petition.
2. The facts of the case, as set out in the writ petition, are
that the petitioner obtained degree of Graduation (B.Com.)
in the year 1995 by securing 44.93% marks. The petitioner
came to be appointed as Primary Assistant Teacher on 18th
October, 2004. Thereafter, in the year, 2010, the petitioner
obtained Bachelor of Education degree from Jammu
University by securing 58.5% marks.
3. The main grievance of the petitioner is that he has
wrongly been subjected to undergo special training for two
years since the marks obtained by him in Graduation
(44.93%) should ben rounded off and be taken as 45%.
4. The respondents have resisted the writ petition on the
ground that a candidate who has passed Graduation with
at least 45% marks and one year degree in Bachelor of
Education has to undergo training for six months. The
petitioner has since passed Graduation by securing only
44.93% marks, he has to undergo special training for two
years. Further, the rounding off is not permissible as per
the Rules occupying the field. Therefore, the impugned
orders made by respondents are stated to be legally correct.
5. We have gone through the notification, dated 29
th
July,
2011, issued by the National Council for Teacher
Education, pleadings and the impugned orders. It is
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specifically provided in Clause III of the said notification
that a candidate has to undergo, after appointment, special
training. It is apt to reproduce relevant portion of clause III
of the said notification hereunder:
“III (i) Training to be undergone. – A person –(a) with
Graduation with at least 50% marks and B.Ed. qualification
or with at least 45% marks and 1year Bachelor in
Education (B.Ed.), in accordance with the NCTE
(Recognition Norms and Procedure) Regulations issued from
time to time in this regard, shall also be eligible for
appointment to Class I to IV up to 1st January, 2012,
provided he/she undergoes, after appointment, an NCTE
recognized 6month Special Programme in Elementary
Education;”
6. Thus, it is clear from a perusal of the above clause that
only those persons are eligible to undergo six months’
special training who possess Graduation degree with at
least 50% marks and B.Ed. qualification or with at least
45% marks and one year degree in B.Ed. up to 1st January,
2012.
7. During the course of hearing, the learned counsel for the
petitioner was asked to show any Rule or Regulation
occupying the field which provides that rounding off is
permissible and the marks obtained by the petitioner in
Graduation i.e. 44.93% can be rounded off as 45%, as
pleaded in the writ petition, which he could not.
8. On the other hand, the learned counsel for the
respondents specifically argued that rounding off is not
permissible. It was further argued that the minimum marks
which a candidate has to secure in Graduation were at least
50% and B.Ed. qualification or at least 45% and one year
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degree in Bachelor of Education, which qualification the
petitioner was lacking. Therefore, it was submitted that the
impugned orders are sustainable in the eye of law.
9. As far as the question of rounding off of marks is
concerned, the learned counsel for the respondents relied
upon the decision of the Apex Court in Orissa Public
Service Commission & Anr. vs. Rupashree Chowdhary &
Anr., AIR 2011 Supreme Court 3276. It is apt to reproduce
paragraphs 7, 10 and 14 of the said decision hereunder:
“7. Learned counsel appearing for the respondents during
the course of his arguments relied upon the decisions of
this Court in State of Orissa and Another v. Damodar
Nayak, 1997 4 SCC 560, State of U.P. and Another v.
Pawan Kumar Tiwari and Others, 2005 2 SCC 10, Union of
India v. S. Vinodh Kumar, 2007 8 SCC 100 and Bhudev
Sharma v. District Judge, Bulandshahr and Another, 2008
1 SCC 233. On scrutiny, we find that the findings recorded
in the above referred cases are not applicable to the facts of
the present case. Facts and findings recorded by this Court
in the above referred cases are distinguishable to facts of
the case in hand. Almost all the aforesaid cases dealt with
post or vacancies where it was allowed to be rounded off to
make one whole post.Understandably there cannot be a
fraction of a post.
Xxxxxxxxxxxxx xxxxxxxxxxxxxxx xxxxxxxxxx
10 There is no power provided in the statute/Rules
permitting any such rounding off or giving grace marks so
as to bring up a candidate to the minimum requirement. In
our considered opinion, no such rounding off or relaxation
was permissible. The Rules are statutory in nature and no
dilution or amendment to such Rules is permissible or
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possible by adding some words to the said statutory rules
for giving the benefit of rounding off or relaxation.
Xxxxxxxxxxxxx xxxxxxxxxxxxxxx xxxxxxxxxx
14. The High Court, in our considered opinion, has also
committed an error apparent on the face of the records by
allowing two more persons, who secured marks between
44.5% and 45%, to be called for interview who were not
even parties before it and who had not even shown interest
subsequently to be appointed subsequent to the declaration
of the results of the examination but despite the said fact
the High Court directed them also to be called for the
interview only on the ground that they have secured more
than 44.5% of marks but less than 45% marks in the main
written examination in aggregate.”
10. Keeping in view the pleadings, Rules and the law
expressed by the Apex Court, the petitioner has failed to
carve out a case for interference.”
14 Similar reiteration of law can be found in a Division
Bench judgment, dated 29.2.2020, authored by one of us (Justice
Jyotsna Rewal Dua) in CWP No. 2344/2019, titled as Jagdish
Thakur vs. State of H.P. and ors., wherein it was observed as
under:
“The petitioner participated in the written examination for
the post of TGT (Arts) held under advertisement No.34
2/2018, dated 19.12.2018 (Annexure P2). The minimum
essential qualification for the post of TGT (Arts), as per R&P
Rules mentioned in the advertisement issued by respondent
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No.2, was BA with atleast 45% marks. The petitioner
though qualified the written examination, however, in the
interview, he was disqualified as he did not possess 45%
marks in BA, which is essential qualification. The petitioner
had 44.8% marks in BA, which was less than the minimum
requirement of 45% marks. Instant writ petition has
preferred by the petitioner seeking direction to respondents
for considering his candidature for the post of TGT (Arts).
2. The prayer made in the writ petition has been opposed by
the respondents by filing their replies submitting therein
that the petitioner is not eligible for the post as he does not
possess prescribed minimum qualification and there is no
provision in the R&P Rules/Advertisement/Rules of
Business & Procedure of respondent No.2, for relaxing the
prescribed minimum essential qualifications required for
the post.
Since, the recruitment cannot be carried out in the
contravention of R&P Rules and the terms of advertisement
for the post, which are sacrosanct for direct recruitment,
hence, we find no merit in the writ petition. Accordingly the
writ petition is dismissed. Pending miscellaneous
application(s), if any, shall also stand disposed of.”
15 Thus, it is more than settled that there can be no
relaxation for roundingoff of marks when the Rules itself prescribe
minimum marks for eligibility.
16 This Court is not persuaded by the submissions of the
petitioner. Accepting it and allowing the petition would mean that
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candidates who secure marks which are less than what is
stipulated as eligibility norm can nevertheless, on some grounds or
rationale outside of the rules or the relaxation norms, be
considered.
17 The starkness of such consequence is apparent from
the fact between 54.6 and 55 as there may be several candidates
far more meritorious than the petitioner who may be kept out.
This in turn would mean that the petitioner would be granted relief
only for having approached the Court; clearly violative of the non
discrimination principle underlying Article 14 of the Constitution.
Furthermore, in the absence of the rule permitting such relaxation
or roundingoff, the Court cannot of its own accord and carry out
an exception.
18 In view of aforesaid discussion and for the reasons
stated above, we find no merit in the instant petition and the same
is accordingly dismissed, so also the pending application(s), if any,
leaving the parties to bear their own costs.
(Tarlok Singh Chauhan)
Judge
(Jyotsna Rewal Dua)
24.9.2020 Judge
(pankaj)
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