REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 6201 OF 2011
[Arising out of SLP(C) No. 6751 of 2010]
Orissa Public Service Commission & Anr. ....Appellant(s)
VERSUS
Rupashree Chowdhary & Anr. ....Respondent(s)
JUDGMENT
Dr. MUKUNDAKAM SHARMA, J.
1. Leave granted.
2. The present appeal is filed against the judgment and order dated
08.12.2009 passed by the Orissa High Court at Cuttack whereby the
High Court allowed the appeal filed by the Respondent No. 1 herein
and ordered for rounding off of the aggregate marks of the
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respondent from 44.93% to 45% along with two other candidates but
not parties before the Court and held her eligible to appear in the
interview as per Rule 24 of the Orissa Superior Judicial Service and
Orissa Judicial Service Rules, 2007 [for short “the Rules”].
3. The facts leading to the filing of the present case are that 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 to which, the
respondent No. 1 applied for the said post. She appeared in the
Preliminary Written Examination held on 15.05.2009. Being
successful in the Preliminary Written Examination, she appeared in
the Main Written Examination which was held from 15-18.07.2009.
The list of successful candidates, who were eligible for interview, was
published on 25.8.2009 in which respondent’s name was not there.
Immediately after publication of the result of the Main Written
Examination, the respondent applied for her marks in the Main
Written Examination and the mark sheet of the respondent was
issued to her on her request on 27.10.2009, which she received on
03.11.2009.
4. After receiving the same, she came to know that she had secured 337
out of 750, i.e., 44.93% of marks in aggregate & more than 33% of
marks on each subject. As per Rule 24 of the Rules the candidates
who have secured not less than 45% of the marks in aggregate & not
less than minimum of 33% of marks in each paper in the written
examination should be called for viva-voce test. Since the respondent
secured 44.93% marks in aggregate she was not called for
interview/viva-voce. Aggrieved thereby she approached the High
Court of Orissa by filing a Writ Petition W.P. (C) No. 16782 of 2009
with a prayer 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% & in that way she would have fulfilled the criteria
as per the Rules. The High Court vide its order dated 08.12.2009
allowed the writ petition filed by the respondent herein against which
this appeal has been filed, upon which, we heard the learned counsel
appearing for the parties.
5. Learned counsel appearing on behalf of the appellant submitted that
as per Rule 24 of the Rules a candidate who has secured not less
than 45% of marks in aggregate could only be called for the interview
and since the respondent secured only 337 out of 750 marks [i.e.,
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44.93%] in the Main Written Examination she was not called for the
interview. Counsel submitted that the High Court erred in permitting
the rounding off of the marks of the respondent as there is no
provision of rounding off or relaxation of marks under the Rules
which permit the Commission to give such a kind of grace to the
respondent. He further submitted that High Court also erred in
permitting 2 more candidates to sit in the interview by rounding off
their marks to 45% even when they were not party to the Writ
Petition before it.
6. Learned counsel appearing on behalf of the respondent however
refuted the contentions made by the counsel appearing for the
appellant and submitted that the High Court rightly and correctly
permitted the respondent to be called for the interview by rounding
off the marks obtained by her to 45%. He further submitted that the
High Court rightly held that in the absence of any Rule dealing with
the fraction of = marks or even less secured by the candidates, while
determining the percentage of marks the same could be rounded off
to the next whole number.
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 reported in (1997) 4 SCC
560, State of U.P. and Another v. Pawan Kumar Tiwari and
Others reported in (2005) 2 SCC 10, Union of India v. S. Vinodh
Kumar reported in (2007) 8 SCC 100 and Bhudev Sharma v.
District Judge, Bulandshahr and Another reported in (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.
8. In the light of the detailed records placed before us we have
considered the aforesaid submissions of the counsel appearing for
the parties. The appointment to the post of Civil Judge (J.D.) under
the Orissa Judicial Services is guided by Orissa Superior Judicial
Service and Orissa Judicial Service Rules, 2007 and Rule 24 thereof
specifically deal with the criteria for determining of candidates for
interview. Rule 24 reads thus: –
“24. Determination of number of candidates for interview –
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The Commission shall call the candidates for interview
who have secured not less than forty-five per centum of
marks in aggregate and a minimum of thirty three per
centum of marks in each paper in the Main written
examination.”
9. 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 a minimum of 33% marks in each of the papers and not less
than 45% of marks in the aggregate in all the written papers in the
Main examination. 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.
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 possible by adding some words to the said statutory rules for
giving the benefit of rounding off or relaxation.
11. 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.
12.The entire record of the main written examination was also
produced before us which indicates that there are also candidates
who have got more than the respondent in the aggregate but has not
been able to get 33% marks in each paper and have missed it only by
a whisker. In case, the contention of the counsel appearing for the
respondent is accepted then those candidates who could not get 33%
marks in each paper in the Main written examination could and
should have also been called for viva-voce examination, which would
amount to a very strange and complicated situation and also would
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lead to the violation of the sanctity of statutory provision.
13.When the words of a statute are clear, plain or unambiguous, i.e.,
they are reasonably susceptible to only one meaning, the courts are
bound to give effect to that meaning irrespective of consequences, for
the Act speaks for itself. There is no ambiguity in the language of
Rule 24 leading to two conclusions and allowing an interpretation in
favour of the respondent which would be different to what was
intended by the Statute. Therefore, no rounding off of the aggregate
marks is permitted in view of the clear and unambiguous language of
Rule 24 of the Rules under consideration.
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.
15.In that view of the matter, the appeal is allowed and the judgment
and order of the High Court is set aside leaving the parties to bear
their own costs.
………………………………………….J
(Dr. MUKUNDAKAM SHARMA)
…………………………………………..J
(ANIL R. DAVE)
NEW DELHI,
AUGUST 2, 2011.
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