Orissa High Court
Afr vs National Council Of Educational on 7 October, 2021
Author: B.R.Sarangi
Bench: B.R.Sarangi
ORISSA HIGH COURT: CUTTACK
W.P.(C) NO. 26182 OF 2021
In the matter of an application under Article 226 of the
Constitution of India.
---------------
AFR
Rahul Sangram Parida ..... Petitioner
-Versus-
National Council of Educational
Research and Training (NCERT) ..... Opp. Parties
and another
For Petitioner : Mr. P. Acharya, Sr. Advocate
along with M/s. S. Rath,
S.S. Tripathy and B. Pani,
Advocates
For Opp. Parties : M/s. Bimbisar Dash,
A. Nayak and A.K. Behera,
Advocates.
[O.P. No.1]
Mr. S. Jena,
Standing Counsel, S&ME,
[O.P. No.2]
P R E S E N T:
THE HONOURABLE DR. JUSTICE B.R.SARANGI
Date of hearing: 01.10.2021: Date of judgment: 07.10.2021
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DR. B.R. SARANGI, J. The petitioner, who belonged to
Economically Weaker Section, has filed this writ
petition seeking direction to the opposite parties to
include his name in the list of merit scholarship under
the National Talent Search Examination, 2019-20
conducted by National Council of Educational Research
and Training, and to provide him extension of time to
undertake necessary formalities for getting scholarship.
2. The factual matrix of the case, in brief, is
that as per the National Talent Search Scheme, the
scholarship is awarded to the candidates for pursuing
courses in science and social science up to doctoral
level and in professional courses like medicine and
engineering up to second stage level subject to
fulfillment of the conditions provided in the brochure
prescribed therein. In order to find out eligible
candidates under the scheme, certain procedures have
been adopted for identification of talent comprising of
two stage selection processes. While the individual
State/UT conducts the first stage selection, the second
stage selection at the national level is carried out by the
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National Council of Educational Research and Training
(NCERT), New Delhi. In view of above procedure, the
candidate, who qualified stage-one examination
conducted at State level, can only be called upon to
appear in the stage-two examination for national level
examination, which has to be conducted by the NCERT.
The petitioner, having qualified stage-one examination,
was allowed to appear stage-two examination
conducted by the NCERT. But he has not been selected
on the plea that he secured 62 marks out of 99 in
Mental Ability Test (MAT) and 38 marks out of 96 in
Scholastic Aptitude Test (SAT) and combining the
marks though he secured 100 marks, but could not
secure minimum marks in SAT. Therefore, the
petitioner was declared as disqualified, though
candidates securing 81 marks in the Economically
Weaker Sections were qualified pursuant to resolution
published on 16.07.2021. Hence this application.
3. Mr. Pitambar Acharya, learned Senior
Counsel appearing along with Mr. S. Rath, learned
counsel for the petitioner contended that stage-two
// 4 //
National Talent Search Examination consists of two
papers, i.e., Paper-I, MAT and Paper-II, SAT. Both the
papers are consisting 100 multiple choice type
questions, with four alternatives and each of them
carries one mark. The stage-two NTS examination was
held on 14.02.2021 and the qualifying mark for the
students belonging to SC and ST category was 32%,
whereas for students belonging to other categories was
40%. It is further contended that the first answer key
was released on 23.03.2021 and all the questions of
both the papers were valid. But when the provisional
result along with final answer key was published on
24.06.2021, the petitioner came to know that one
question from MAT and three questions from SAT were
not considered while calculating the final marks,
thereby the total marks of MAT come to 99, where as
SAT to 97. But it appears that in SAT, instead of total
marks as 97, it has been come down to 96 marks,
which is apparent from the mark sheet issued in favour
of the petitioner in Annexure-6 series at page-44 of the
brief. Thereby, four questions in SAT have not been
// 5 //
taken into consideration and, as such, out of total
questions of 100, since four questions have not been
taken into consideration, it comes to 96, of which the
petitioner secured 38. It is contended that in spite of
securing 38 marks in SAT, the petitioner was not
qualified and, as such, disqualification of the petitioner
is arbitrary, unreasonable and contrary to the
provisions of law and outcome of non-application of the
mind of the authority.
4. Mr. B. Dash, learned Central Government
Counsel appearing for opposite party no.1-NCERT
vehemently contended that a candidate, excluding
SC/ST/PH category, is required to acquire 40% of the
total mark for being selected for award for scholarship
under National Talent Search Examination. The
petitioner, having secured less than 40% of marks in
the SAT examination, he does not satisfy the condition
embodied in the brochure, wherein under clause-3.2.3,
it has been clearly mentioned that 40% will be the
qualifying marks for being selected for awarding of
scholarship. It is contended that the petitioner secured
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62 marks out of 99 in MAT examination, which is more
than 40%, but in SAT examination, the petitioner has
secured 38 marks out of 97 which is less than 40%
and, as such, he has not secured the minimum
qualifying marks. Therefore, the petitioner was declared
unsuccessful in the said examination. It is further
contended that the qualifying marks for MAT and SAT
examination comes to 39.6 and 38.8 respectively,
whereas the petitioner obtained 62 and 38 marks in the
respective subjects. Thereby, he has failed to secure
qualifying marks by a margin of 0.8 marks in SAT
examination, as a result of which, he was not selected
to be awarded scholarship. Thus, it is contended that
the writ petition should be dismissed.
5. Mr. S. Jena, learned Standing Counsel
for School and Mass Education Department appearing
for opposite party no.2, while elaborating the scheme
applicable for selection, specifically contended that in
view of the eligibility criteria the petitioner, who was
qualified in the stage-one examination, was permitted
to appear in the examination conducted by the NCERT
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in stage-two. As such, since the petitioner was not
qualified by securing minimum percentage of marks, he
was not selected. Thereby, it is contended that the writ
petition is liable to be dismissed.
6. This Court heard Mr. P. Acharya, learned Senior
Counsel appearing along with Mr. S. Rath, learned
counsel for the petitioner; Mr. B. Dash, learned Central
Government Counsel appearing for opposite party no.1-
NCERT and Mr. S. Jena, learned Standing Counsel for
School and Mass Education Department appearing for
opposite party no.2 by hybrid mode. Pleadings having
been exchanged between the parties, with the consent
of learned counsel for the parties, this writ petition is
being disposed of finally at the stage of admission.
7. The National Council of Educational
Research and Training (NCERT) was established by the
Government of India in the year 1961 with a view to
brining about qualitative improvement in school
education in the country. No sooner the council was set
up than it mounted a number of programmes in this
direction. One such programme was to identify and
// 8 //
nurture the talented students. This programme took up
the shape of a scheme called National Science Talent
Search Scheme (NSTSS) in the year 1963, which
provided for the identification of talented students and
awarding them with scholarships. During the first year
of the implementation of the scheme, it was confined to
the Union Territory of Delhi, wherein only 10
scholarships were awarded to the Class XI students.
But in the year 1964, the scheme was extended to all
the States and the Union Territories in the country with
350 scholarships for the student of Class XI. These
scholarships were awarded on the basis of written
examination, a project report and interview. The written
examination comprised the science aptitude test and
an essay on a given scientific theme. The candidates
were to submit the project report at the time of the
written examination. A stipulated number of
candidates selected on the basis of these three
components were then subjected to personal interview.
The performance of the candidates on these four
components was eventually employed for the purpose
// 9 //
of awarding scholarship. These scholarships were
awarded for pursuing education only in basic science
up to doctoral level. Consequent upon the introduction
of 10+2+3 pattern of education, the NSTS scheme also
underwent a change in the year 1976. It was no longer
confined to only basic sciences but was extended to
social sciences, engineering and medicine as well. It
was renamed as National Talent Search Scheme
(NTSS). Since the education system in the country was
undergoing a change, the scheme was made open to
the students of Classes X, XI and XII and separate
examinations were conducted for each class. The
number of scholarship was raised to 500. The selection
procedure was also changed. The candidates were
subjected to two objective types written tests, namely,
the Mental Ability Test (MAT) and the Scholastic
Aptitude Test (SAT). A stipulated number of candidate
qualifying these two tests were subjected to face-to-face
interview. The final awards were made on the basis of
composite scores obtained in the MAT, the SAT and the
interview. The number of scholarships was again
// 10 //
enhanced from 500 to 550 in the year 1981. These 50
scholarships were exclusively meant for Scheduled
Castes (SC) and Scheduled Tribes (ST) candidates. The
number of scholarships was once again escalated to
750 in the year 1983 with a provision of 70
scholarships especially for SC/ST candidates. This
arrangement continued until the scheme was
decentralized in the year 1985. In the year 1985, the
scheme was re-casted and was completely centralized
and partially decentralized and was confined to only
Class-X. Under the new arrangement, the selection of
candidates for the awards became a two-tier process.
The States and the Union Territories were entrusted
with the responsibility of conducting the first tier
screening examination known as State Level Talent
Search Examination. Each State and Union Territory
was to select and recommend a stipulated number (as
per the State quota) of candidates for the national level
examination to be conducted for about 3000
candidates by the NCERT. The number of scholarships,
however still continued to be 750 including 70 for
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SC/ST candidates. The State and the Union Territory
quota was to be computed proportionately on the basis
of the student enrolment at secondary level with a
minimum of 10 for a Union Territory and 25 for a State
and maximum of 500 for either of the two. This quota
was to be reviewed every three years. The States and
Union Territories had complete autonomy to design and
conduct their written examinations. However, they were
advised to follow the national pattern which comprised
MAT and SAT. The MAT, which consisted of 100
multiple choice type questions, was to be attempted by
all the candidates. The SAT consisted of 200 questions
containing 25 multiple choice type questions each on
eight subject areas namely Mathematics, Physics,
Chemistry, Biology, History, Geography, Civics and
Economics. The candidates could choose any four out
of these eight subjects and had to answer a total of 100
questions in the SAT. A stipulated number of
candidates, who qualified at the national level
examination, were called for face-to-face interview. The
award of scholarships was finally determined on the
// 12 //
basis of the candidates' scores obtained in all the three
components namely the MAT, the SAT and the
interview. As such, the scheme has undergone for
evaluation from time to time. The present scheme
relates to the scholarship awarded to the candidates for
pursuing courses in science and social science up to
doctoral level and in professional courses like medicine
and engineering up to second stage level subject to
fulfillment of the conditions provided in the brochure
prescribed therein. As on date 2000 scholarships are
awarded in the country with reservation of 15 percent
for SC, 7.5 percent for ST, and 27 percent for other
backward classes, and 4 percent for group of students
with benchmark disabilities.
8. Clause-3 of the scheme deals with selection
procedure for identification of talent which comprises
two-stage selection process, while the individual
State/UT conducts the first stage selection, the second
stage selection at the national level is carried out by the
NCERT. Clause-3.1 deals with state level examination,
which provides that each State/UT conducts its own
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examinations. They have the autonomy to lay down
their own norms for the purpose of determining the
eligibility of the candidates. Clause-3.1.1 deals with
eligibility which speaks that all students studying in
class X in any type of recognized school including
Kendriya Vidyalaya, Navodaya Vidyalaya, and Sainik
School etc. will be eligible to appear at the State Level
Examination from the State in which the school is
located. The mode of submission of application and
medium of examination has been provided under
clasuses-3.1.2 and 3.1.3 respectively. Clause-3.1.5
deals with examination, wherein it has been provide
that the State level examination may have two parts;
Part-I Mental Ability Test (MAT) and Part-II Scholastic
Aptitude Test (SAT) for nominating the required
number of candidates for the second level test to be
conducted by the NCERT. Clause-3.2 deals with
national level examination and clause-3.2.1 deal with
eligibility, which provides that it is open for the
students of Indian nationality whether they study in
India or abroad at Class-X level. Clause-3.2.1.1 deal
// 14 //
with candidates studying in India, whereas clause-
3.2.2 deals with syllabus, which provides that there is
no prescribed syllabus for the NTS examination.
However, the standard of items shall be conforming to
the level of classes IX and X. A separate booklet called
"Learn about the Test" containing sample items for
both the tests-MAT and SAT is available in print as well
as on the NCERT website. Clause-3.2.3 deals with
scheme of testing which provides Part-I and Part-II
relating to MAT and SAT examination respectively with
number of questions and marks as 100 each, and
qualifying marks as 32% for SC, ST and PWD, and 40%
for others (General & OBC) category separately in both
papers. Clause-3.2.4 deals with written examination,
whereas clause-3.2.5 deals with Mental Ability Test and
clause-3.2.6 deals with Scholastic Aptitude Test.
Clause-3.2.13 deals with conduct of examination and
clause-3.2.14 deals with marking, which provides that
in each item in both the tests shall carry one mark
each. A candidate shall get one mark for correct
response. There will be no negative marking in either of
// 15 //
the tests. But it was cautioned that nevertheless,
candidates are advised not to resort to blind guessing,
which may not be of any help to them. Clause-3.2.16
deals with declaration of result, whereas clause-3.2.17
deals with rechecking. Under the brochure, so far as
State quota of Odisha for the year 2018-19 and 2019-
20 is concerned, it was 259 and this quota is revised
after every three years.
9. The petitioner, who belonged to Economically
Weaker Section, knowing fully well the conditions
stipulated as per the brochure, had appeared in the
stage-one State level examination for the year 2019-20
and qualified in the said examination held on
03.11.2019 conducted by the Directorate of Teachers
Education and SCERT, Orissa, Bhubaneswar.
Consequentially, the petitioner became eligible to
participate in the national level test stage-two
conducted by the NCERT on 14.02.2021. Accordingly,
the petitioner appeared in the stage-two National Level
examination in Paper-I Mental Ability Test (MAT), and
secured 62 out of 99 marks and, as such, one question
// 16 //
being wrong, one mark has been reduced from the full
mark. Similarly, in Paper-II Scholastic Aptitude Test
(SAT) the petitioner secured 38 out of 96 marks. As
four questions were wrong out of 100, calculation has
been made out of total 96 questions, which is evident
from the mark sheet provided to the petitioner vide
Annexure-6 series. The petitioner was not selected on
the plea that he has not secured 40 percent marks
which is required to be eligible for participating in the
viva voce test. There is no dispute that the petitioner
secured 40 percent marks in MAT, Paper-I by securing
62 marks out of 99. As such, 40 per cent of 99 would
be 39.6, which is rounded to whole number as 40. But
so far as SAT is concerned, the petitioner secured 38
out of 96 marks. As four questions were wrong,
thereby, total marks have been reduced to 96, out of
which 38 marks have been awarded to the petitioner. If
40 percent thereof would be taken into consideration, it
comes to 38.4. As point four (.4) is less than the
decimal fraction of point five (.5), it cannot be
construed to be a whole number. Thereby, the
// 17 //
minimum marks should be construed as 38. But in the
counter affidavit, it has been stated that three
questions in SAT had gone wrong and, therefore, total
questions, i.e., 100-3=97, and if 40 per cent thereof
would be taken into consideration, it comes to 38.8. As
point eight (.8) is more than the decimal fraction of
point five (.5), it will construe as 39. Thereby, the
petitioner, having not secured 40 per cent marks, was
not eligible to participate in the process of selection and
was declared disqualified.
10. Now, the only question to be taken into
consideration by this Court is, whether the marks
awarded/provided to the petitioner, i.e., 38 will be
taken into consideration as out of 96 or 97, as has
been stated in the counter affidavit, for determining the
eligibility criteria to qualify in Paper-II SAT examination
conducted by the authority.
11. In paragraph-8 of the writ petition, the
petitioner has specifically pleaded to the following
effect:
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"8. That when the final result was published on
16.07.2021, the petitioner came to know that
the total mark for MAT and SAT has been
reduced to 99 and 96 respectively. In such
event the qualifying marks becomes 40% of 99
and 96, which shall be 39.6 and 38.4
respectively. If the same is rounded off the
qualifying mark for MAT and SAT should be 40
and 38 respectively. It is pertinent to state here
that in the final result published on 16.07.2021
the petitioner has secured 62/99 in MAT and
38/96 in SAT. It is further significant to state
here that whereas the cut off mark for the EWS
students was 81 marks in total, the petitioner
has secured 100 marks in total which is well
above the cut off mark."
But, in paragraph-5.4 of the counter affidavit filed by
opposite party no.1, in reply to the paragraph-8 of the
writ petition, it has been stated as follows:-
"That in response to para-8 it is most
respectfully submitted that the qualifying marks
for MAT and SAT examination comes to 39.6
and 38.8 respectively whereas the petitioner
obtained 62 and 38 in the respective subject.
Therefore it is crystal clear that the petitioner
has obtained qualifying marks in MAT whereas
he failed to secure qualifying marks by a
margin of 0.8 in SAT examination as a result of
which he was not selected to be awarded
scholarship. If procedure of rounding off is
adopted then also the petitioner does not
satisfy the conditions since by rounding off 39.6
is to be treated as 40 so also 38.8 is to be
treated as 39 sine more than the decimals
fraction of .5 is to be treated as a whole
number."
12. On perusal of the above mentioned
pleadings, it is made clear that in SAT examination the
// 19 //
total marks was fixed to 96 and, as such, the mark-
sheet issued in his favour has not been disputed by the
opposite partyno.1 in the counter affidavit. More so, the
document, which was issued in his favour vide
Annexure-6 series at page-44 of the writ petition
scrupulously indicates that the petitioner has secured
38 out of 96 and opposite party no.1 has not denied the
same. If the pleadings made in paragraph-8 of the writ
petition, which corroborates the documents in
Annexure-6 series to the writ petition, would be taken
into consideration together with the averments made in
paragraph-5.4 of the counter affidavit, there is no
denial to such documents nor any specific pleadings is
there that in SAT out of 100 marks three questions
were wrong and total questions reduced to 97. More so,
there is no pleadings made by opposite party no.1 in
the counter affidavit that mention of marks of SAT as
38 out of 96 in the documents, which had been issued
in favour of the petitioner in Annexure-6 series, is a
mistake and that the same has to be rectified. In
// 20 //
absence of such specific pleadings, the contention in
the counter affidavit cannot sustain in the eye of law.
13. The law is well settled by the Constitution
Bench of the apex Court in Mohinder Singh Gill v.
The Chief Election Commissioner, New Delhi, AIR
1978 SC 851 that:
"........ when a statutory functionary makes
an order based on certain grounds, its
validity must be judged by the reasons so
mentioned and cannot be supplemented by
fresh reasons in the shape of affidavit or
otherwise. Otherwise, an order bad in the
beginning may, by the time it comes to court
on account of a challenge, get validated by
additional grounds later brought out.
Orders are not like old wine becoming better
as they grow old".
Similar view has also been taken by this Court in M/s
Ranjit Construction v. State of Odisha, 2018 (I) OLR
808.
14. Nothing has been placed on record to
indicate that the mark sheet which has been issued in
favour of the petitioner in Annexure-6 series at page-44
of the brief is a mistake and the same requires
// 21 //
correction or a fresh mark sheet is to be issued in his
favour. Rather, in the counter affidavit, only it has been
stated that total mark was 97, so far as SAT is
concerned, and 40% thereof would become 38.8 and if
it is rounded off, it will come to 39. Thereby, the
petitioner was not qualified. The reasons which have
been mentioned in the counter affidavit cannot be
accepted as has been provided in the shape of affidavit
or otherwise. Thereby the documents, which have been
placed on record, have to be taken into consideration,
and according to that, if the petitioner secured 38 out
of 96, 40% thereof comes to 38.4, and as it is less than
the decimal fraction of point five (.5), it would be
rounded off to 38, then the petitioner would be
considered for eligible as he has secured 40 per cent
marks in SAT. The issue with regard to rounding off
marks had come up for consideration before this Court
in Kabita Dhal v. State of Orissa, 2014 (II) OLR 290,
wherein this Court decided that the same is
permissible in respect of marks secured by the
candidates. Therefore, there is no dispute that since
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the petitioner has secured 38 marks out of 96, he
cannot be declared as disqualified.
15. The NCERT provided national talent scheme
and has taken laudable steps in the matter of
education, which is an investment made by the nation
in its children for harvesting a future crop of
responsible adults productive of a well functioning
society. However, children are vulnerable. They need to
be valued, nurtured, caressed and protected. It is
important to provide adequate educational
opportunities for all since it is education, which
ultimately shapes life. It is the source of that thin
stream of reason which alone can nurture a nation's
full potential. Moreover, in a democratic society, it is
extremely important that the population is literate and
is able to acquire information that shapes its decisions.
In the present system of education, the system of
examinations is the best suited to assess the progress
of the student so long as they are fairly conducted.
Interference by Court in every case may lead to
unhappy results making the system of examination a
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farce. For instance, we cannot but strongly condemn
copying in the examination which has grown into
canker of mass copying. Such unhealthy practices
which are like poisonous weeds in the field of education
must be rooted out in order that the innocent and
intelligent students are not affected. But here is a case,
where the petitioner, having appeared in the written
examination as per the scheme both in MAT and SAT,
and having qualified in MAT, has been declared
unsuccessful in SAT as because he secured 38 out of
96 marks, for allegedly not securing 40% marks for
eligibility. But on scrutinizing carefully the mark-sheet
provided by opposite party no.1 this Court finds that
the petitioner has secured 40 percent out of total
marks of 96, for which he is eligible for selection.
16. In Keshav Ram Pal v. U,P.H.E.S.C., (1986)
1 SCC 671, the apex Court (O. Chinnappa Ready, J.
speaking for the Court) held that "(.....) the written examination assesses the man's intellect and the interview test the man himself and the twain shall meet for a proper selection.
// 24 //
17. In Pankaj Sharma v. State of J&K, (2008) 4 SCC 273, the apex Court held that where there were discrepancies in question papers of the preliminary examination conducted by the Jammu and Kashmir Public Service Commission for appointment to the State services, the Public Service Commission took a decision to delete defective questions and add marks on pro rata basis, the decision was held to be valid and not irrational or arbitrary.
18. Applying the principles enunciated above to the present context, this Court finds that the petitioner and similar examinees were appeared in the examination for 100 marks and as one question was wrong in MAT examination, one mark was deducted from 100 and calculation has been made out of 99. Similarly, in SAT examination since four questions were gone wrong out of 100, calculation has been made out of 96, though in the counter affidavit it has been stated as 97, since according to opposite party no.1 three questions were wrong. But nothing has been placed on record with regard to actually how many and // 25 // exactly which questions were wrong. On the basis of documents provided to the petitioner, which have been corroborated by the marks sheet issued to the petitioner under Annexure-6 series, it is evident that the petitioner has been awarded with 38 marks out of 96 and such fact has remained un-rebutted. Thereby, on careful calculation it is construed that the petitioner secured 40 percent marks in SAT examination and is thus qualified in the examination under the Economically Weaker Section category.
19. In Sanjay Singh v. U.P. Public Service Commission, (2007) 3 SCC 720, the apex Court held that "marks awarded" or "marks obtained in the written papers" do not refer only to the actual marks awarded by the examiner. The marks assigned by the examiner are not necessarily the marks finally awarded to a candidate. Award of marks by the examiner is only one stage of the process of valuation. If there is any error in the marks awarded by the examiner it can always be corrected by the Commission and the corrected marks will be "the final marks awarded to the candidate".
// 26 //
20. Even applying the above principle to the present context, as nothing has been placed on record with regard to change of marks awarded by the opposite party no.1 in favour of the petitioner and, as such, no revised mark sheet has also been issued to the petitioner nor any pleadings thereof have been made in the counter affidavit that there was error in calculation of the marks awarded to the petitioner, it can be construed that the marks contained in the mark sheet are final marks awarded to the candidate, i.e., the petitioner herein.
21. In view of the facts and circumstances, as well as the law, as discussed above, this Court comes to an irresistible conclusion that if 40% marks awarded in SAT would be taken as qualifying marks, the petitioner, having secured 38 out of 96 marks, has already qualified in the said examination. More so, under the Economically Weaker Section category the cutoff mark has been fixed as 81. Therefore, if the total marks secured by the petitioner in both MAT and SAT, which comes to 100, is taken into consideration, it // 27 // would be seen that the petitioner has secured 19 marks more than the cutoff marks. Thereby, otherwise also, the petitioner is eligible to be considered for selection under Economically Weaker Section category. More so, while entertaining this writ petition, this Court passed interim order on 01.09.2021 to the effect that one seat under the EWS category may not be filed up till 14th September, 2021 and such interim order was extended from time to time. Thereby, this Court directs that the petitioner, having qualified in both MAT and SAT examinations conducted by the NCERT, should be considered forthwith for future course of action in accordance with the scheme.
22. In the result, the writ petition is allowed. However, there shall be no order as to costs.
..............................
DR. B.R. SARANGI, JUDGE Orissa High Court, Cuttack The 7th October, 2021, Ashok/GDS