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2009 DIGILAW 407 (KER)

Annie T Varghese v. State of Kerala

2009-05-29

V.GIRI

body2009
JUDGMENT V.GIRI, J. 1.Common issues arise for consideration in these writ petitions which have been heard together and therefore they are being disposed of by a common judgment. 2.Petitioners appeared for the State Eligibility Test conducted in the year 2008. Ext. P2 is the prospectus issued in this behalf by the 4th respondent, the agency entrusted by the Government, to conduct the test. The main dispute relates to clause 13 of the prospectus. The same reads as follows. "13. Requirement for Pass: To pass the State Eligibility Test, a candidate should get i) at least 35 per cent of marks in Paper I and Paper II separately, and ii) at least 50 per cent as the average of the percentages in Paper I and Paper II." 3. There is no dispute that the petitioners obtained 35% in each one of these papers separately. Nor there is any contention by the petitioners that they have obtainedmorethan50% marks in each of the two papers. In either of the papers, the percentage of marks obtained by the petitioner is less than 50. But uniformly all of themcontendthatclause13.2oftheprospectus should have been considered and implemented by the 4th respondent in such a manner that the average minimum namely 50% of papers I and II should have been computed by aggregating the marks separately obtained by them in papers 1 and II and then arriving at the percentage as such. Originally the maximum marks awarded for papers 1 and 2 was100and 120. In so far as paper I is concerned, two questions were deleted subsequently. Therefore, valuation was against a maximum of 98. Even for paper II the valuation was not uniformly against the maximum of 120 marks. In some cases valuation was against the maximum marks of 117 or 118 consequential to the deletion of two or three questions as the case may be. The grievance of the petitioners arose when the 4th respondent proceeded to draw up the percentage of each one of these candidates for papers I and II separately, adding the two percentages and then proceeding to determine the average. When this was done it so happened that though the marks obtained by the petitioners for the two papers were taken together aggregate and then reduced into a percentage fetched more than 50%. When this was done it so happened that though the marks obtained by the petitioners for the two papers were taken together aggregate and then reduced into a percentage fetched more than 50%. It gave rise to different result when the percentages of the two papers separately drawn up were added together and then divided by two. Apparently this occurred because of the denomination of marks in these papers; i.e. 98 in paper 1 or 117,118 or 120 in paper II. Petitioners contend that the computation of marks for the purpose of clause 13 of the prospectus should have been done in such a manner that the marks obtained by the candidates individually should have first been aggregated and then the percentage of the same determined. 4. Fourth respondent points out that no ambiguity arises from a plain reading of clause 13.2. What is mentioned therein is 50% as the average of the percentages in papers 1 and 2 and therefore what is contemplated is drawing up of the percentage of papers I and II separately, aggregate the same and then divide it by two. This has been scrupulously followed. Though therefore the procedure followed might have resulted in persons like the petitioners who have obtained 50% marks, by aggregating the marks in paper I and II and then determining the percentage, they have not secured a minimum 50% as the average of the percentages in papers I and II. It is pointed out that the crucial words are "average of the percentages". 5.Dispute of a similar nature came to be considered by this Court in relation to the SET conducted for the year 2007. Clause 13 of the prospectus for the year 2007 reads as follows. "13. Requirement for Pass: Those candidates who secure a minimum of 35% marks in each Paper (separately) and an aggregate minimum of 50% marks will be considered to have passed the Test." 6. Similar contentions were advanced by the petitioners. The method adopted bythe4th respondent, was to determine the percentage of marks in each paper separately, aggregate the percentages and then divide it by two. The Court considered the correctness of this procedure. The discussion made by the Court is contained in paragraphs6to10ofthejudgment(Ext. P3) which read as follows: "6. The question is; which is the right method which should be followed in consonance with clause 13 of the prospectus? The Court considered the correctness of this procedure. The discussion made by the Court is contained in paragraphs6to10ofthejudgment(Ext. P3) which read as follows: "6. The question is; which is the right method which should be followed in consonance with clause 13 of the prospectus? A reading of the said clause shows that there is no ambiguity as such. A candidate will have to obtain a minimum 35% marks in each paper separately. He should also obtain an aggregate minimum of 50% marks for getting a declaration to have passed the test. The important words therein are: "marks" and "aggregate minimum". Therefore, emphasis is on the minimum percentage of 35% of the marks and of the aggregate minimum of 50% marks. If the method adopted by the respondents is verified, it will be seen that they have taken the percentage of each paper separately and then they have taken the average of the percentage of marks awarded for each paper, i.e. after adding the percentage of marks for each paper and divide it by two to get the average. Thus, they have travelled away from the method provided in clause 13 of the prospectus. They have not adopted the method of adding the marks obtained in each paper and get the correct percentage by dividing it by the total marks and multiplying it by hundred. The same is the accepted popular method to get the correct percentage. Therefore, the total marks have been given a go-bye and clearly reliance is placed on the percentage of each paper. In fact, when the percentage is added together and are divided by two, then that will be clearly varying itself from the other method. If the method adopted in clause 13 is adhered to, then they will have to add the marks obtained for each paper and divide it by the total marks and get the correct percentage. 7. The question therefore is what is the import of the words "aggregate" and "minimum". In the Oxford Reference Dictionary, the word 'aggregate' is given the meaning 'combined', 'total' and the word 'minimum' is given the meaning 'least amount possible'. Emphasis of the words 'aggregate' and 'minimum' with reference to clause 13 of the prospectus, is on the marks received and not to the average of percentage of marks as adopted by the respondents. In the Oxford Reference Dictionary, the word 'aggregate' is given the meaning 'combined', 'total' and the word 'minimum' is given the meaning 'least amount possible'. Emphasis of the words 'aggregate' and 'minimum' with reference to clause 13 of the prospectus, is on the marks received and not to the average of percentage of marks as adopted by the respondents. Percentage of marks obtained for each paper will be a different integer than the individual marks. By calculating the percentage of the marks of two papers and taking the average of the same as noted already, the method to be worked out as per clause 13 is deviated. According to me, when the prospectus clearly spells out a method, the Pass Board cannot adopt a different method altogether and that too which is irrational. Percentage has to be calculated only for the purpose of finding out whether the candidate has obtained the minimum of 35% for each paper and an aggregate minimum of 50%. In view of the above, the contention that the aggregate of the fractional marks secured by the candidates can be determined only by arriving at the L.C.M. Of the denominators, is rejected. 8. Learned counsel for the respondents argued that the Pass Board is an expert body constituted by the Government as per Ext. R3(a) for conducting the examination and valuation, etc. and they are fully empowered to choose the method for calculating the marks. It is therefore submitted that this Court cannot substitute the method adopted by the respondents. I am afraid, the said contention cannot be accepted for more reasons than one. 9. Firstly, the provisions contained in the prospectus are binding on all parties and the clauses therein can be amended only by any known method allowed by law. A subordinate body like Pass Board which is only created by the Government as per Ext. R3(a), is not competent to vary or amend the said clauses in the prospectus. Secondly, if the method adopted by the Pass Board is totally irrational in the sense that it is unreasonable and arbitrary, then, in exercise of judicial review this Court can interfere with the same. These principles are well settled and any action which is unreasonable, arbitrary and irrational, will be against the principles enshrined in Article 14 of the Constitution of India. These principles are well settled and any action which is unreasonable, arbitrary and irrational, will be against the principles enshrined in Article 14 of the Constitution of India. Any authority vested with power, will have to conform to the principles of Article 14. Therefore, the contention raised by learned counsel for the respondents cannot be accepted. 10. Therefore, I hold that the writ petitions as regards the said question succeed. It is declared that the method adopted as per para 2.1 in Ext. R3.(b) for valuation of answer papers is clearly irrational, arbitrary and unconstitutional. The respondentshavetoconformtoclause13 of the prospectus, to arrive at the required percentage of marks after adding the marks of two papers and divide by total marks and to get its percentage and in all cases where it is50%or above, the petitioners herein will be entitled to be declared to have passed in the examination." 7. Petitioners contend that the procedure adopted by the Pass Board for the previous year 2007 in drawing up the percentage of each one of the papers separately and then determining the average minimum of the percentage was found to be an irrational method by the Court, as evidenced by Ext. R3(b) and as per the declaration contained in para 10 of the judgment. It seems that the same method has followed in the present year also and therefore on a parity of reasoning, going by the declaration made in Ext. P3 judgment, similar declaration should follow in the present year also. 8. I heard Mr. Jaju Babu, Sri. Johnson Manayani, Sri. Madhavan Unni, Smt. Sheeba Mariam and Sri. P. Pratheesh, leaned counsel for the petitioners. On the other hand the learned standing counsel Sri. P. B. Suresh Kumar appearing for the 4th respondent contends that the declaration made by this Court in Ext. P3 judgment was qua clause 13 of Ext. P1 prospectus for the year 2007. Clause 13 of the prospectus for the year 2008 is duly worded and the emphasis is on average of the percentages and not the average of the marks, it is contended. I have anxiously considered the contentions raised by the petitioners based on Ext. P3 judgment. Sri. Suresh Kumar is not wrong when he submits that the wording of clause 13 in the prospectus for the year 2007-08 are obviously not identical. I have anxiously considered the contentions raised by the petitioners based on Ext. P3 judgment. Sri. Suresh Kumar is not wrong when he submits that the wording of clause 13 in the prospectus for the year 2007-08 are obviously not identical. He is also correct when he submits that the intention in wording clause 13 of Ext. P2 prospectus might have been really to emphasise on determining the average of the percentages. But I am inclined to follow the declaration made in Ext. P3 judgment for more than one reason. Firstly this Court had in Ext. P3 judgment considered the method that was adopted by the 4th respondent for the year 2007 in first determining the percentages for papers 1 and 2 and then aggregating the same and then determining the average by two. This Court considered the procedure not only with reference to clause 13 of prospectus as it was then worded, but also on the touchstone of irrationality and non-arbitrariness. It is thereafter that this Court proceeded to declare that the procedure of drawing; up of the percentages for papers I and II in the first instance and then aggregating it to arrive at the average percentage of papers 1 and 2 would not be the correct method. More appropriate method according to this Court was to aggregate the marks obtained in papers 1 and 2 and then to determine the percentage. 9. If that be so, notwithstanding the difference in the wording in the prospectus, I am of the view that the more appropriate method for determining the minimum percentage for the present year also would to aggregate the marks obtained by the candidates in papers I and II and then determining the percentage. 10.I have also independently considered the rival versions and I am inclined to agree with the submission made by the counsel for the petitioners. It will be appropriate that the individual marks obtained in papers I and II are aggregated and then the average of the two is determined as percentage. 11. It seems that Ext. P3 judgment was taken up in appeal before the Division Bench and by an interim order dated 13/01/2009, the Division Bench directed the Board of Examination (Pass Board) to reconsider the method of determination of the average minimum in the light of the directions issued in Ext. P3 judgment. 12.Sri. 11. It seems that Ext. P3 judgment was taken up in appeal before the Division Bench and by an interim order dated 13/01/2009, the Division Bench directed the Board of Examination (Pass Board) to reconsider the method of determination of the average minimum in the light of the directions issued in Ext. P3 judgment. 12.Sri. Suresh Kumar submits that pursuant to the same, the Pass Board decided that for the year 2007 all the candidates who had obtained minimum of 50% either by aggregating the percentages or by aggregating the minimum marks and then determining the average were declared as passed. It is only appropriate that the said procedure which was adopted by the Pass Board for the year 2007 be adopted for the year 2008 also. 13. Accordingly, these writ petitions are allowed in part. Fourth respondent shall proceed to determine the percentage of marks obtained by each one of the petitioners by aggregating the marks obtained by each one of them in papers I and II and then determine the percentage of the same. If the percentage of the marks obtained by the candidates by following such method is 50 or more then such candidates should be declared as passed. I make it clear that this declaration/direction should not result in any of the candidates who have been declared as passed by the 4th respondent by aggregating the individual percentage of marks and then dividing it by two being treated as failed. Consequential steps shall be taken and appropriate declaration shall be made within one month from the date of receipt of a copy of this judgment.