Research › Search › Judgment

Orissa High Court · body

2009 DIGILAW 936 (ORI)

RUPASHREE CHOWDHURY v. STATE OF ORISSA

2009-12-08

I.M.QUDDUSI, SANJU PANDA

body2009
JUDGMENT : Sanju Panda, J. - Challenge has been made by the Petitioner in this Writ Petition to the action of the Opp. Parties in not calling her for interview (viva-voce test) in the Orissa Judicial Service Examination, 2009. 2. The facts, as narrated in the application, are as follows ; The Orissa Public Service Commission (in short, "the OPSC") published an advertisement inviting applications from suitable candidates for the Orissa Judicial Service Examination, 2009 for direct recruitment to fill up 77 posts of Civil Judges (J.D). Pursuant thereto, the Petitioner having the requistie qualifications applied for the said post. She appeared in the Preliminary Written Examination which was held on 15.5.2009. Being successful in the Preliminary Written Examination, she submitted long application form & appeared in the Main Written Examination which was held from 15th to 18.7.2009. The list of successful candidates was published on 25.8.2009. The Petitioner's name was not in the list. Immediately after publication of the result of the Main Written Examination, the Petitioner with requisite fees applied for her marks obtained in the Main Written Examination, The general practice of the OPSC is that the mark sheets are issued after the publication of the final selection list for the post. Since the interview in question was conducted in the month of October, 2009 & the result thereof was published on 16.10.2009, the mark sheet of the Petitioner was issued on 27.10.2009 which she received on 3.11.2009. After receiving the same, she came to know that she secured 44.93% of marks in aggregate & more than 33% of marks on each subject. In total, she secured 337 out of 750. As per Rule 24 of the Orissa Superior Judicial Service & Orissa Judicial Service Rules, 2007 (in short, "the Rules"), the candidates who have secured not less than 45% of the marks in aggregate & a minimum of 35% of marks in each paper in the written examination should be called for viva-voce test. Since the Petitioner secured 44.93% marks in aggregate, she has approached this Court by filing this Writ Petition for a declaration that she should have been called for the interview as the fraction of marks, i.e., 44..93%, secured by her should have been rounded off to 45% & she has fulfilled the criteria as per the Rules. 3. Mr. Since the Petitioner secured 44.93% marks in aggregate, she has approached this Court by filing this Writ Petition for a declaration that she should have been called for the interview as the fraction of marks, i.e., 44..93%, secured by her should have been rounded off to 45% & she has fulfilled the criteria as per the Rules. 3. Mr. S.P. Mishra, Learned Senior Advocate appearing on behalf of the Petitioner, submitted that the marks secured by the Petitioner should have been considered in arithmetical principle of rounding off which postulates to treat any number with a fraction equal to or more than "0.5 mark" to the next whole number. That means, the fraction is to be counted as "1". Since the Petitioner secured 44.93% of marks, on the basis of the above arithmetical principle, should have been counted as 45%. Therefore, the Petitioner should have been called for the interview as she fulfilled the criteria to be called for the interview as per the Rules, In support of his contention, he cited the decision reported in State of Orissa and another Vs. Damodar Nayak and another wherein the Apex Court, while considering the entitlement to grant-in-aid on acquisition of prescribed qualification, has held that since Respondent No. 1 secured 53.9% of marks, which was almost equivalent to 54% of marks, he was entitled to receive the grant-in-aid for payment of salary from the date of his acquiring qualification. 4. On being enquired by the Court, Mr. B.K. Dash, Learned Counsel appearing for Opp. Party No. 2-OPSC, submitted that since the Petitioner secured less than 45% of marks, she has not been called for the interview. The Rules stipulate that a candidate who has secured not less than 45% of marks in aggregate shall be called for the interview. Therefore, rightly the Petitioner was not called for the said interview. Further on the query of the Court, he produced the letter dtd 27.11.2009 of the OPSC & submitted that there are 3 candidates including the Petitioner who had secured marks more than 44.5% in the O.J.S. (Main) Examination, 2009. 5. On the above submissions made by the Learned Counsel for the parties, this Court has to consider whether the Petitioner fulfilled the criteria as per the Rules to face the interview. In order to resolve the controversy, it is necessary to refer to the relevant Rule which is quoted below: 24. 5. On the above submissions made by the Learned Counsel for the parties, this Court has to consider whether the Petitioner fulfilled the criteria as per the Rules to face the interview. In order to resolve the controversy, it is necessary to refer to the relevant Rule which is quoted below: 24. Determination of number of candidates for interview. The Commission shall call the candidates for interview who have secured not less than 45 % of marks in aggregate & a minimum of 33% of marks in each paper in the written examination. 6. From a reading of the above Rule, it is clear that a candidate must secure minimum 33% of marks in each paper & also not less than 45% of marks in aggregate in the written examination. Admittedly, the Petitioner secured 33% of marks in each paper of the written examination & 337 of marks in aggregate out of 750 which comes to 44.93% of marks. 7. In the cases of Bhudev Sharma Vs. District Judge, Bulandshahr and Another, & State of Orissa and another Vs. Damodar Nayak and another State of U.P. and Anr. v. Pawan Kumar Tiwari and Anr. reported in (2005) 2 SCC 10 , the Apex Court has held that if the fraction is 0.5 or above, it has to be rounded off so as to read as "1". 8. In the present case, the Rule is silent as to how the fraction of 1/2 marks or above secured by the candidates is to be considered while determining the percentage of marks. Therefore, taking into consideration the above principle decided by the Apex Court in the absence of any Rule, we are of the view that where the marks obtained by the candidate is with a fraction of 0.5 or above, it is to be rounded off to the next whole number so far as aggregate marks are concerned as per Rule 24. That is the general principle adopted in all educational institutions while awarding marks in the examination. That is the general principle adopted in all educational institutions while awarding marks in the examination. However, we make it clear that where inter se merit of the candidates is to be examined in respect of percentage of marks in each paper in the written examination is concerned, the rounding off theory is not to be made applicable because the candidate may get the grace twice & may be a large number of candidates/ applicants who might have secured equal marks with a fraction between 0.5 & 1. In the instant case, in aggregate only 3 (three) candidates have secured marks between 44.5% & 45%. Therefore, they are qualified/eligible to appear in the interview as per Rule 24. 9. In view of the above, it is open to Opp. Party No. 2 OPSC to take steps in this regard as per the Rules. The Writ Petition is accordingly allowed. I.M. Quddusi, A.C.J. I agree.