ORISSA PUBLIC SERVICE COMMISSION & ANR. versus RUPASHREE CHOWDHARY & ANR.

[2011] 9 S.C.R. 748

ORISSA PUBLIC SERVICE COMMISSION & ANR. v. RUPASHREE CHOWDHARY & ANR. (Civil Appeal No. 6201 of 2011)

AUGUST 2, 2011. [DR. MUKUNDAKAM SHARMA AND ANIL R. DAVE, JJ.]

Orissa Superior Judicial Service and Orissa Judicial Service Rules, 2007:

--Rule 24 Minimum qualifying marks Rounding off of

-- Orissa Judicial Service Examination 2009 Main written -examination One of the criteria being 45% of marks in [aggregate ][to ][be ][called ][for ][viva-voce ][-][ Candidate ][securing ]-44.93% of marks filing writ petition High Court directing the marks of the writ petitioner and two others to be rounded off -as 45% and to call them for viva-voce HELD: No rounding off of the aggregate marks is permitted in view of the clear and [unambiguous language ][of ][r. ][24 ][-][ High ][Court has also ]committed an error apparent on the face of the record 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 Judgment and order of the High Court set -aside Interpretation of statutes.

Respondent no.1, who secured 337 out of 750 i.e. 44.93% of marks and more than 33 % of marks in each subject in the Main Written Examination of the Orissa Judicial Service Examination, 2009, but was not called for [viva-voce test, filed writ petition before the. High Court ]with prayer that the fraction of marks, i.e., 44.93 % secured by her, should have been rounded off to 45 % and, thus, she fulfilled the criteria as per Rule 24 of the

ORISSA PUBLIC SERVICE COMMISSION v. RUPASHREE 749 CHOWDHARY

Orissa Superior Judicial Service and Orissa Judicial Service Rules, 2007 and, as such, she should have been called for the viva-voce test, The High Court allowed the writ petition. Aggrieved, the Orissa Public Service Commission filed the appeal.

Allowing the appeal, the Court

HELD: 1.1 bare reading of Rule 24 of the Orissa

Superior Judicial Service and Orissa Judicial Service Rules, 2007 would make it crystal clear that in order to qualify in the written examination candidate has to [c ]obtain 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 candidate concerned, there cannot be question of relaxation or . rounding off. There is no power provided in the statute/ Rules permitting any such rounding off or giving grace marks so as to bring up candidate to the minimum requirement. 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. [para 9-1 OJ [754-A-D]

District Collector & Chairman, Vizianagaram Social

Welfare Residential School Society, Vizianagaram and Another. v. M. Tripura Sundari Devi 1990 (2) SCR 559 = -(1990) 3 sec 655 relied on.

State of Orissa and Another v. Damodar Nayak 1997 (3) SCR 456 = [(1997) 4 SCC ][560, ][State ][of ][U.P. ][and Another ]v. Pawan Kumar Tiwari and Others 2005 (1) SCR 21 = (2005) 2 SCC 10, Union of India v. S. Vinodh Kumar 2007 (10)

[2011] 9 S.C.R.

SCR 41 = (2007) 8 SCC 100 and Bhudev Sharma v. District

Judge, Bu/andshahr and Another 2007 (11) SCR 730 = (2008) 1 sec 233 - held inapplicable.

1.2 When the words of statute are clear, plain or

8 [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. [para 13) [755-B-D]

1.3 The High Court has also committed an error

apparent on the face of the record 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 subsequent to the declaration of the results of the examination. The judgment and order of the High Court is set aside. [para 14-15) [755-E-G]

Case Law Reference:

held inapplicable para 7 held inapplicable para 7 held inapplicable para 7 held inapplicable para 7 relied on para 11

1997 ( 3) SCR 456 2005 (1 ) SCR 21 2007 (10 ) SCR 41 2007 (11 ) SCR 730 1990 (2) SCR 559

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 6201 of 2011.

ORISSA PUBLIC SERVICE COMMISSION v. RUPASHREE 751 CHOWDHARY

From the Judgment & Order dated 08.12.2009 of the High

Court of Orissa at Cuttack in Writ Petition (Civil) No. 16782 of 2009.

Kirti Renu Mishra, Rishi Jain for the Appellants.

S.K. Das, Ajay Chaudhary for the Respondents.

The Judgment of the Court was delivered by

DR. MUKUNDAKAM SHARMA, J. 1. Leave granted.

2. The present appeal is filed against the judgment and [c ]

order dated 08.12.2009 passed by the ' Orissa High ' Court at Cuttack whereby the High Court allowed the appeal filed by the 1 [Respondent ][No. ][1 ][herein ][and ][ordered ][for ][rounding ][off of ][the ]aggregate marks of the 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 isuitable 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 01 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 Writ Petition W.P. (C) No. 16782 of 2009 with [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 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., 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 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, whiie 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. U.P. and Another v. Another v. 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 sec 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 fraction of post.

reported in (1997) 4 SCC 560, State of U.P. U.P. and Another v. Another v. v.

8. In the light of the detailed records placed before us we

have considered the aforesaid submissions of the counsel i 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 [G ]- The Commission shall call the candidates for interview who have secured not less than forty-five per centum of marks in aggregate and minimum of thirty three per centum of marks in each paper in the Main written examination."

9. bare reading of the aforesaid rules would make it

crystal clear that in order to qualify in the written examination candidate has to obtain 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 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 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

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 particular qualification and an appointment is made in disregard of the [same ][then ][it is not 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 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 very strange and complicated situation and also would lead to the violation. of the sanctity of statutory provision.

13. When the words of 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 Sllbsequently 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 m.ore t~an 44.5%. of '!la~s but less than 45% marks in the mam written examination m 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.

Appeal allowed .