The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK WA No. 802 of 2023 State of Odisha and another …. -Versus- Appellants Dhrutimaya Behera and others …. Respondents Advocates appeared in this case : For Appellants : Mr. Bimbisar Dash, AGA For Respondents : Mr. S.P. Misra, Senior Advocate : Mr. Ramdas Achary, Advocate : Mr. B.K. Sharma, Senior Advocate CORAM: THE HON'BLE MR. JUSTICE ARINDAM SINHA, THE ACTING CHIEF JUSTICE AND
Legal Reasoning
THE HON’BLE MR. JUSTICE M.S. SAHOO J U D G M E N T ------------------------------------------------------------------------------------- Date of hearing and judgment: 30th January, 2025 ------------------------------------------------------------------------------------- ARINDAM SINHA, ACJ. 1. Mr. Dash, learned advocate, Additional Government Advocate appears on behalf of appellants. It is State. The appeal has Page 1 of 9 been preferred against judgment dated 24th February, 2023 made by the learned single Judge. Mr. Misra, learned senior advocate and Mr. Sharma, learned senior advocate respectively appear on behalf of respondents and proforma respondent. 2. Reproduced below is direction paragraph-17 in impugned judgment. “17. For the foregoing reasons therefore, this Court holds that the petitioners have made out a good case for
Decision
interference by this Court. As such, the writ petitions are allowed and the following directions are issued:- (i) The cut-off marks fixed by the committee be applied taking into account the marks secured by the petitioners in Part-I, II and III of the CBT. (ii) If they are found to be thus eligible, they shall be called upon to attend the performance test and interview. (iii) The petitioners who have already attended the performance test and interview during pendency of the writ petition shall be considered for selection as indicated above. (iv) If the petitioners or any of them are found to have been selected considering their total marks, they shall be WA No.802 of 2023 Page 2 of 9 considered for appointment against the existing vacancies. (v) The whole exercise shall be completed within a period of two months from today.” It appears, controversy between the parties is regarding direction (i). 3. Mr. Dash draws attention to the modalities for selection of music teacher given by clause-8.6 in the document being detailed modalities on invitation for applications to several posts issued by Odisha Adarsha Vidyalaya Sangathan (OAVS). He points out, modality clause-8.6 is in respect of selection of music teacher. The clause is reproduced below. “8.6 MUSIC TEACHER: The online test will comprise of Part-I, Part-II and Part- III. All the questions will be Multiple Choice Questions. The test will be of 200 minutes duration. Each question will carry 1 mark. There will be negative marking of 0.25 marks for each wrong answer. Part-I of the question paper will consist of 40 Multiple Choice Questions in the subjects English (20) and Odia (20) carrying 1 mark each. WA No.802 of 2023 Page 3 of 9 Part-II of the test will comprise of 30 questions each in Current Affairs and Reasoning. Part-III of the test will comprise of 100 subject related multiple choice questions. Part-II and Part-III of the test of the candidate will be evaluated only if he/she qualifies in Part-I securing 5 marks each in English and Odia subjects and 13 marks in aggregate. A performance test of 20 marks will be conducted separately. There will be an interview of 20 marks. For preparation of the final merit, the weighted evaluation scheme shall be test 50% (Parts-II & III), Performance Test 20% and Interview 30%.” (emphasis supplied) 4. He points out that the modalities provide for the type of questions and marks against parts- I, II and III. Those constitute written test for giving answers to multiple choice questions on different subjects. There are other parts being performance test and interview. He demonstrates from the modalities that part-I stands separated from parts-II and III with regard to preparation of final WA No.802 of 2023 Page 4 of 9 merit list. In the preparation considered will be parts-II and III as weighted evaluation scheme test at 50%, performance test at 20% and interview 30%. He explains, part-I is for purpose of candidates qualifying to take tests parts-II and III. The qualifying marks under part-I is not to be taken into account for weighted evaluation scheme test, confined to marks obtained in parts-II and III only. 5. He submits, above contention was not appreciated by the learned single Judge. More so because said modalities clause-8.6 was not under challenge in the writ petition. In the circumstances, direction (i) for cut off marks fixed by the committee being applied taking into account the marks secured by writ petitioners in parts-I, II and III of Computer Based Test (CBT) is erroneous. He adds, the direction though in respect of cut off marks but still is erroneous because the cut off marks decided in exercise of discretion by OAVS is fixed in respect of total marks obtained by a candidate. The total marks, he reiterates, must be aggregated on marks obtained in parts-I and II only as provided for in the weighted evaluation scheme, 50%. He seeks interference for modification of said direction in the judgment accordingly. WA No.802 of 2023 Page 5 of 9 Mr. Misra relies on modality clause-7(a). It is reproduced 6. below. “7. SELECTION PROCEDURE: (a) Candidates will be selected on the basis of their performance in Computer Based Test (CBT), Interview and Performance Test as applicable and specified in these modalities put together. The OAVS reserves the right to decide the cut off marks in CBT and Interview separately.” (emphasis supplied) He submits, direction clause (i) in impugned judgment is in respect of computing cut off marks, to include marks obtained by candidates in parts-I, II and III of CBT. He lays emphasis on relied upon clause to submit, there is no distinction made between the parts, which constitute CBT. As such, there is no error either in appreciating the facts as appears in impugned judgment. 7. He submits further, it may be that part-I was put in the selection procedure for purpose of candidates qualifying to proceed to take parts-II and III, the performance test and interview. However, WA No.802 of 2023 Page 6 of 9 fixing cut off marks taking only parts-II and III of CBT would be arbitrary elimination of candidates. 8. We are clear in our minds that cut off mark was decided by OAVS taking into account the marks obtained as provided in clause- 7(a) in relation to appointment of music teachers. The controversy appears to be whether the cut off mark is to be taken from marks as can be obtained by a candidate in parts-I, II and III or parts-II and III only. A close scrutiny of clause-8.6 reveals that the online test will comprise of parts-I, II and III. That is sufficient for us to conclude that Computer Based Test referred to as CBT is the online test on parts- I, II and III. 9. Cut off marks are to be fixed in the discretion of OAVS as per modalities clause-7(a). The clause does not provide calculation of the marks as provided in modalities clause-8.6. Clause-7(a) reserves right to the institute to decide cut off marks in CBT and interview separately. Contention of the candidates that in deciding cut off marks, marks obtained in CBT are to be taken together. On query made, we have ascertained that the cut off marks were fixed at a time when the performance test and interview had not taken place. Therefore, only one cut off mark exists at 35 marks in relation to WA No.802 of 2023 Page 7 of 9 CBT. It follows, argument and contention of State that the cut off marks must be decided taking total marks of parts-II and III only as to be calculated under modalities clause-8.6 cannot be maintained. As a consequence, we do not find any error in the directions made in impugned judgment. 10. Mr. Misra hands up subsequent judgment dated 14th December, 2023 made by the learned single Judge on review. Paragraph-10 from the judgment is reproduced below. “10. For the foregoing reasons therefore, the review application is allowed only to the extent of modifying the directions in paragraph-17(i) & (ii) of the judgment dtd.24.2.2023 in the following manner; “the words „and the performance test‟ be added after the words CBT in Sl. No.(i) and the words „performance test and‟ be deleted in Sl. No.(ii).” It appears from direction paragraph 10 in the review judgment that performance test as has been added, is to be taken into consideration for fixing cut off marks. Modalities clause-7(a) clearly provides for cut off marks to be applied in the discretion of OAVS separately for CBT and for interview. WA No.802 of 2023 Page 8 of 9 11. We reiterate confirmation of impugned judgment dated 24th February, 2023, particularly, in view of last preceding paragraph. 12. As a consequence, the appeal is dismissed. (Arindam Sinha) Acting Chief Justice Sks/S.Behera (M.S. Sahoo) Judge Signature Not Verified Digitally Signed Signed by: SISIR KUMAR SETHI Reason: Authentication Location: ORISSA HIGH COURT Date: 30-Jan-2025 19:30:36 WA No.802 of 2023 Page 9 of 9