JUDGMENT
S.B. Sinha, CJ
1. The question that arises for consideration in this appeal is under what circumstances Letters Patent would lie – either against an order refusing to review the original order of the original order of the learned single Judge.
2. The writ appeal arises out of the orders dated 26-4-2001 and 3-4-2001 passed by a learned single Judge of this Court in Revenue WP No.11343 of 2001 and WP No.191 of 1998 whereby and whereunder the learned Judge allowed the writ application holding that the procedure adopted by the management of the 1st respondent-edticational institution in selecting the candidates for the post of Physical Education Teachers is irregular and illegal and contrary to the employment notification dated 25-11-1997.
3. The fact of the matter is not in dispute. An employment notification was issued whereby applications were invited from the candidates registered in the employment exchange in the State of Andhra Padesh for selection and appointment in the posts inter alia of Physical Education -Teachers. The provisional qualification required therefor was a diploma in Physical Education. Clause 3 of the said notification states that the method of selection was a written test for 85 marks and an interview for 15 marks. The respondents, however, conducted the written examination for
40 marks Questioning the said change in
the method of selection, the writ petition has been filed.
4. The learned single Judge, in the order dated 3-4-2000 passed in the writ petition, observed thus:
Although respondents 2 to 5 have filed counter affidavit, quite understably, they have not produced the question paper to deny the allegations of the petitioner. Respondent No. 1 is the author of question paper and for the reasons best known to it, it has not put in appearance in the case, nor produced the question paper before the Court for its perusal. At the time of hearing, the Court pointedly asked Government Pleader for School Education and also learned Counsel for 5th respondent as to whether their clients have the question paper and both of them told the Court that the question paper is not available with them. Further, in both the counters filed by the official respondents and 5th respondents, the specific allegation of the petitioner extracted above is not denied by them. I do not find anything on record to doubt the integrity of the sworn statement made by the petitioner in para (6) of his affidavit. From what is stated by the official respondents and 5th respondent in their counter affidavits, it seems to my mind that the allegations made by the petitioner in para (6) of the affidavit is correct. I say this because meeting the allegations of the petitioner in para (6) of the affidavit, the official respondent in para (5) of the counter affidavit have stated that written test includes demonstration of various aspects of physical education, training and such demonstration has to be treated as a part of the written examination. In other words, it is impliedly admitted by the respondents that the written test as such did not carry 85 marks as notified in the Employment Notification. If according
to the curriculum and system of examination,
separate marks have to be allotted for demonstration of various aspects of physical education training, there was not difficulty for the management to notify so in the Employment Notification, but the Employment Notification does not provide any marks separately for the demonstration of physical education training.
In the result and for the foregoing reasons, I hold that the procedure adopted by the management of 1st respondent educational institution in selecting the candidate for the post of physical education teacher is irregular and illegal and contrary to the Employment Notification dated 25-11 -1997. Accordingly, the writ petition is allowed and the appointment of 5th respondent as Physical Education Teacher is quashed. Now, the management is at liberty to notify the vacancy in the post of Physical Education Teacher and to fill up the same in accordance with law. No costs.
5. The selected candidate for the post of Physical Education Teacher, is the 5th respondent in the writ petition, has filed a petition seeking to review the order dated 3-4-2000, but the same was rejected by the learned single Judge holding that no ground was made out for reviewing the original order.
6. Aggrieved by the said order, the 5th respondent has preferred this appeal. When the matter came up for admission before the Division Bench comprising the Chief Justice and Justice V. V.S. Rao, the Bench while admitting the appeal referred the matter to the Full Bench observing:
The question that arises for consideration in this appeal is under what circumstances a Letters Patent would lie – either against an order refusing to review the original order or the original order of the learned single Judge. The said question
being an important question of law and as the decision of a Division Bench of this Court in requires a reconsideration, the matter may be heard by a Larger Bench/Full Bench.
7. The contention of Mr. Subrahmanya Sharma, learned Counsel appearing on behalf of the appellant is that apart from the written examination, demonstration tests are required to be held for the purpose of appointment in the posts in question. He also took us through the original order passed by the learned single Judge.
8. The learned Counsel would further contend that the matter would have been different had the percentage of marks for the interview viz., viva-voce has been brought down proportionately so as to make the action of the official respondents lawful, but the respondents did not do so, which is arbitrary and illegal and thus violative of Article 14 of the Constitution.
9. Mr. Eranki Phani Kumar, learned Counsel appearing on behalf of the writ petitioner, however, submits that the official respondents were bound to follow the procedure laid down in the formal notification.
10. Right from Ajay Hasia (Ajay Hasia v. Khalid Mujib, ) to Ashok Kumar Yadav (Ashok Kumar Yadav v. State of Haryana, ) the Apex Court has sought to evolve a guideline for ensuring fairness in the matter of appointments in educational institutions, as also public employment, fixing the maximum marks for interview. Such a principle had been determined with a view to avoid arbitrariness and for ensuring fairness. It is not the case of the writ petitioner-respondent that such procedural fairness had been given a go-bye and the respondents instead of giving 15 marks towards viva-voce test, had raised the same to 60 marks. Had such a contention been raised, the
same might have found favour with this Court. In the absence of the same, bringing down the marks for the written examination from 85 to 40 by the official respondents, in our opinion, cannot be termed to be discriminatory and thus violative of the provisions of Article 14 of the Constitution of India. Each candidate is required to answer the questions in the written examination. The 2nd respondent, however, has not made any discrimination in that regard. He, however, had set apart some marks for demonstration tests, which is also necessary for the purpose of finding out the suitability or otherwise of a Physical Education Teacher. We find no fault in the said action of the 2nd respondent. We therefore, are of the opinion that the original judgment in the writ petition cannot be sustained. The question is answered accordingly.
11. We, however, make it clear that the respondents, in no circumstances, shall be entitled to raise the percentage of viva-voce marks proportionately other than what has been prescribed in the recruitment notification.
12. In view of the aforementioned reasons, the order under appeal is set aside and the writ appeal is allowed. No order as to costs.
