Madhya Pradesh High Court
Sushil Kumar Sharma vs The Madhya Pradesh Professional ... on 25 April, 2016
HIGH COURT OF MADHYA PRADESH, JABALPUR
Writ Appeal No.230 of 2015
Sushil Kumar Sharma
Versus
M.P.Professional Examination Board
Present : Hon. Shri Justice Rajendra Menon
Hon. Shri Justice Anurag Shrivastava
Shri A.K.Singh and Shri Ajay Dwivedi, counsel for appellant.
Shri Swapnil Ganguly, G.A., present in the Court extends his
assistance to this Court, even though the State is not a party.
Whether approved for reporting: Yes/No.
ORDER
(26.4.2016) Seeking exception to an order dated 28.1.2015 passed by the writ Court in Writ Petition No.3638/2009, this appeal has been filed by the appellant under section 2(1) of M.P.Uchcha Nyayalaya (Khand Nyayapeeth Ko Appeal) Adhiniyam, 2005 .
2. The petitioner was a candidate who participated in the selection process initiated by the M.P.Professional Examination Board (VYAPAM) for appointment on the post of Samvida Shala Shikshak Grade-III. The procedure and the Rules for selection to this post is laid down in the Examination Rules 2008 known as M.P.Samvida Shala Shikshak Shreni-III Patrata Pariksha-2008, Cheyan Avam Pariksha Sanchalan Niyam. As per the scheme for the aforesaid examination, it is found that the examination is segregated into two sections A and B with 5 and 3 sub-sections respectively. Examination in both the sections A & B carry 100 marks respectively and the scheme contemplates that a candidate who obtain minimum 40% marks in both the sections shall be eligible for appointment.
3. Be it as it may be, the scheme also contemplates the scheme for calculating the marks in case of wrong question and how to neutralize the result. Be it as it may be, the petitioner in this case applying the formula as laid in sub- cause 2.8 of Chapter 2 of the Niyam, petitioner was awarded 39.58 marks and as the marks obtained by the petitioner were less than 40 marks, the petitioner was not held as qualified. The petitioner in the writ petition came out with the case that petitioner was entitled for rounding-off the marks and if the marks of petitioner are rounded-off, the petitioner will get 40% marks and would be eligible to participate in the further process of selection. Placing reliance on a judgment rendered by this Court in the case of Dharmendra Kumar Shrivastava Vs. Jiwaji University Gwalior [2002(2) MPLJ 619] and another unreported judgment of Single Bench of this Court in Writ Petition No.6903/2009 decided on 7.4.2010 parties being Jitendra Shukla Vs. State of M.P. and others, it is canvassed before us that learned writ Court without considering the fact that the rounding-off of the marks is permissible and without taking note of the judgment rendered as indicated hereinabove in the case of Dharmendra Kumar and Jitendra Shukla (supra) rejected the contention of the petitioner, which according to the learned counsel is unsustainable.
4. It was canvassed that in the case of Jitendra Shukla (supra) which also pertains to appointment of Samvida Shala Shikshak and in the eligibility test, the candidate was permitted rounding-off marks and as in the judgment rendered by the learned writ Court is in direct conflict to the judgment rendered to in the case of Jitendra Shukla (supra), the relief claimed for should be granted. Accordingly the only ground canvassed in this writ appeal is that in view of the aforesaid legal principle canvased, rounding-off of marks should be granted and the petitioner declared eligible to participate in the further process of selection.
5. Even though nobody appears for the Professional Examination Board, but Shri Swapnil Ganguly, learned Government Advocate present in the Court rendered his assistance to the Court and invited our attention to the two judgments of Supreme Court and canvassed a contention to say that when recruitment to the post is undertaken on the basis of statutory rules and when the rules do not provide for rounding-off of marks or granting grace marks, the same cannot be permitted. He invited our attention to the judgments of Supreme Court in the case of Orissa Public Service Commission and another Vs. Rupashree Chowdhary and another [(2011) 8 SCC 108] and another judgment in the case of Registrar, Rajiv Gandhi University of Health Sciences, Bangalore Vs. G.Hemlatha and others [(2012) 8 SCC 568] in support of his contention. It was emphasized by Shri Ganguly particularly with reference to the law laid down in the case of G.Hemlatha (supra) to say that when selections are made to a post or to a seat in competitive Examination and when the candidate is to be appointed or selected based on the merit in the entrance/competitive examination, every mark even decimal i.e. 0.1 creates a difference in the merit of a candidate and therefore in such circumstances rounding-off of marks cannot be permitted. He emphasized that in the case of Dharmendra Kumar (supra) the mater pertains to declaration of a candidate as passed in a General Examination conducted by a University and based on the discretion available with the University and its Vice Chancellor as per the statute the decision was taken. Shri Ganguly argued that in the light of the law laid down in the case of G.Hemlatha (supra) the aforesaid principle cannot be applied in such cases for eligibility and recruitment, particularly when the rules stipulate, the candidate should get minimum 40% marks for the participation in the selection process.
6. We have considered the contentions and have taken note of the submission made by Shri Swapnil Ganguly and have also considered the judgment rendered in the case of Rupashree Chowdhary and G.Hemlatha (supra). Admittedly in the present case the rules of examination contemplates that a candidate should get minimum of 40% marks in both the groups to be eligible to participate for the further process of selection. There is no provision in the rule which permits for rounding-off of or granting of grace marks to a candidate. In the case of Rupashree Chowdhary (supra) the Supreme Court after taking note of Orissa Superior Judicial Service and Orissa Judicial Service Rules, 2007, has held that in the absence of their being any statutory rules permitting relaxation or rounding-off of marks, same is impermissible. In the case before the Supreme Court the candidate got 44.93 % marks and minimum marks eligible for qualifying was 45% and when this was not done, the matter travelled to the Supreme Court. It was held by the Supreme Court that no dilution or amendment in the Rules was permissible or possible by adding words to the Rules for giving benefit of rounding-off or relaxation, the same is not permissible. This principle is followed in the case of G.Hemlatha (supra) wherein in the light of the judgment in the case of Rupashree Chowdhary (supra) the same principle reiterated and it was observed that for appointment of a candidate even 0.1 marks plays a crucial role in the selection of the candidate, rounding-off of marks cannot be permitted until and unless Rules permit so.
7. Even though petitioner has referred to the case of Jitendra Shukla (supra) and its implementation by the State Government permitting rounding-off of marks, we are of the considered view that the case of Jitendra Shukla (supra) does not lay down the correct proposition of law and the case of Jitendra Shukla (supra) cannot be applied in the case of present petitioner as it runs contrary to the law laid down by the Supreme Court.
8. That being the legal position as it emerges from the law laid down by the Supreme Court, there is no error in the order of writ Court by refusing to allow benefit to the petitioner placing judgment of Jitendra Shukla (supra). Although the case relied upon in Jitendra Shukla (supra) and the principle laid down in the said case is incorrect in the back drop of the law laid down in the case of Rupashree Chowdhary and G.Hemlatha (supra). Infact the learned writ Court had decided the case of Jitendra Shukla (supra) applying the case of law laid down in Dharmendra Kumar (supra), in the year 2010, much before the judgment was rendered in the case of Rupashree Chowdhary and G.Hemlatha (supra). In view of aforesaid, we are of the considered view that the judgment of Jitendra Shukla (supra) cannot be applied and is no more good law in the light of the legal position as is referred in the judgments rendered in Rupashree Chowdhary and G.Hemlatha (supra).
9. Accordingly finding no error warranting reconsideration in the order passed by the learned writ Court,reconsideration, we dismiss this appeal.
(RAJENDRA MENON) (ANURAG SHRIVASTAVA) JUDGE JUDGE M