S. U. C. Behura & P.Dutta, Advocates v. For Opp. Parties
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK WP(C) Nos. 14172, 15229, 15268 and 15320 of 2018 Applications under Articles 226 & 227 of Constitution of India. WP (C) No. 14172 of 2018 --------------- Dhurtimaya Behera & another …. Petitioners -versus- State of Odisha and Others …. Opp. Parties WP(C) No. 15229 of 2018 Ashok Kumar Sahoo …. Petitioner -versus- State of Odisha and Others …. Opp. Parties WP(C) No. 15268 of 2018 Jayadev Sahoo and others …. Petitioners -versus- State of Odisha and Others …. Opp.Parties WP(C) No. 15320 of 2015 Swati Mukta and others …. Petitioners -versus- State of Odisha and Others …. Opp. Parties Advocate(s) appeared in these cases:- Page 1 of 20 For Petitioners : Mr. S.P. Mishra (Sr. Advocate), R.K.Rout, R. Acharya, A.K.Dash, N. Barik S.Hidayatullah & P.K. Mishra, Advocates. For Opp. Parties : Mr. S. Parida, Vs. (Sr. Standing Counsel for School and Mass
Legal Reasoning
Education Dept.) Mr. B.K.Sharma, A.U.Senapati, S.Palei, S.K.Singh, S.Das & A.Panda, Advocates (For O.P. No.3) [ in WP(C) No. 14172 of 2018] For Petitioner : M/S. U. C. Behura & P.Dutta, Advocates Vs. For Opp. Parties : Mr. S. Parida, (Sr. Standing Counsel for School and Mass Education Dept.) Mr. B.K. Sharma, Advocate [ in WP(C) No. 15229 of 2018] (for O.P. No.3) For Petitioners : M/S. U. C. Behura & P.Dutta, Advocates Vs. For Opp. Parties : Mr. S. Parida, (Sr. Standing Counsel for School and Mass Education Dept.) Mr. B.K. Sharma, Advocate [ in WP(C) No. 15268 of 2018] (for O.P. No.3) For Petitioners : M/S.U. C. Behura & P.Dutta, Advocates Vs. For Opp. Parties : Mr. S. Parida, (Sr. Standing Counsel for School and Mass Education Dept.) Mr. B.K. Sharma, Advocate (for O.P. No.3) [ in WP(C) No. 15320 of 2018] __________________________________________________________ CORAM: Page 2 of 20 JUSTICE SASHIKANTA MISHRA JUDGMENT 24th February, 2023 SASHIKANTA MISHRA, J. All these writ petitions involve identical facts and question of law. As such, they were heard together and are being disposed of by this common judgment. Since the facts of each of these cases are identical, the details of only one writ petition, i.e. WP(C) No.14172 of 2018 is referred to for convenience. 2. Pursuant to an advertisement issued by the Odisha Adarsha Vidyalaya Sangathan (OAVS) inviting applications to fill up the post of Principal and teaching posts of various disciplines in the Adarsha Vidyalayas of the State, the petitioners possessing Bachelor’s Degree in Music from Utkal University of Culture submitted their applications. The petitioners being found eligible were issued admit cards to appear in the Computer Based Test comprising three parts. As per the modalities laid down in the advertisement, the candidates were required to score 13 marks in aggregate in Part-I of the outline Test (CBT) for Page 3 of 20 the Part-II and III tests being evaluated. All the petitioners claim to have secured more than the minimum required mark in Part-I and therefore, they were expecting to be called upon to appear in the performance test as well as interview. However, as against the vacancy of 115 posts only 30 candidates were called to attend the performance test and interview held on 09.08.2018. Alleging that the petitioners were wrongly deprived of their right to appear in the performance test and interview, the petitioners have approached this Court in the present writ petitions with the following prayer:- “The petitioners have, therefore, prayed that this Hon’ble Court may be graciously pleased to admit the writ petition, issue a RULE NISI calling upon the Opp. Parties No.2 & 5 to show cause as to why the list prepared under Annexure-6 with regard to the vacant post of music teachers shall not be caused to be modified to include the name of the petitioners to appear in the performance test and interview pursuant to Annexure-1 along with the list prepared under Annexure-6 and if the Opp. Parties no.2 & 3 fail to show cause or show insufficient cause then the said rule be made absolute by directing the O.P. No.2 & 3 to modify the list under Annexure-6 by including the name of the petitioners to appear in the performance test and interview along with the list under Annexure-6 as per the advertisement under Annexure-1 for 115 posts. Page 4 of 20 And for this act of kindness, the petitioners shall as in duty bound, ever pray.” 3. Counter affidavit has been filed by opposite party nos. 1 and 2, refuting the claim of the petitioners. It is stated that 417 candidates had applied for the post of Music Teacher and all of them were allowed to appear in Part-I Online test. Thereafter, evaluation of Part-II and III was made and the cut-off mark was fixed by the committee constituted for the purpose as per the advertisement for the purpose of elimination. Since the petitioners secured less than the cut-off marks decided by the selection committee, they were not called upon for document verification, performance test and interview. 4. The petitioners have filed a rejoinder to the counter questioning the fixation of cut-off marks. It is stated that as per the advertisement, cut-off marks have to be fixed for Computer Based Test (CBT) and interview separately. It is further stated that according to the advertisement, the candidates who qualify in Part-I of CBT are also entitled to appear in performance test and interview. It is further stated that the committee was not competent to fix cut-off Page 5 of 20 marks not being the committee constituted by the Government for the purpose. It is also stated that Music being a performing art, the merit of a candidate cannot be evaluated without holding the performance test and that merely on the basis of performance in the CBT, proper assessment of the merit of a candidate for Music discipline could not have been done in the manner done by the authorities. 5. The opposite party nos. 1 and 2 have filed a reply to the rejoinder reiterating the stand that even if a candidate qualifies in Part-I test, he cannot be short listed for interview and performance test unless he secures marks above the cut-off fixed by the committee. It is further reiterated that the committee was fully competent to fix the cut-off marks and took an informed decision in such respect. It is however admitted that in the first phase of recruitment held during 2016, the marks secured in Part-I, II and III of the CBT was taken into account as per decision of the committee, but for the recruitment during 2017-18, only the marks secured in Part-II and III were taken. Page 6 of 20 6. The petitioners by way of an additional affidavit have enclosed a copy of the advertisement no.1 of 2015 to state that in the said recruitment process marks secured by candidates in Part-I, II and III of the CBT were taken into account for fixation of the cut-off marks. 7. The opposite party no.2 has also filed an additional affidavit reiterating all the facts already averred in its counter and justifying the non-inclusion of the petitioners in the final select list. 8. Heard Mr. S.P. Mishra, learned Senior Counsel along with Mr.S. Mishra and Mr. U. C. Behera, learned counsel appearing for the petitioners and Mr. S. Parida, learned Senior Standing Counsel for the School and Mass Education Department. Also heard Mr. B.K. Sharma, learned counsel appearing for the opposite party no.3, i.e., the recruiting agency. 9. Leading the arguments on behalf of the petitioners in all the writ petitions, Mr. S.P.Mishra contends that the process of selection adopted by the authorities is contrary to the procedure laid down in the advertisement itself. Page 7 of 20 Referring to the advertisement, copy of which is enclosed as Annexure-1 to the writ petition, Mr. Mishra has argued that as per Clause-8.6, Part-I of the test is qualifying in nature and if a candidate secures the minimum marks fixed, his other papers namely, Part-II and III will be evaluated. The Clause also provides that a performance test of 20 marks will be conducted separately and there will be an interview of 30 marks. However, it provides that for preparation of the final merit list only Part-II and III of the CBT shall be considered. Mr. Mishra argues that this is contrary to the selection procedure laid down under Clause-7 (a) of the advertisement, which provides that the candidates will be selected on the basis of their performance in CBT, interview and performance test put together. Since Clause-7 lays down the selection procedure, the same shall prevail upon Clause-8.6, which provides only the scheme of examination. Mr. Mishra has further referred to the order of the Government dated 02.03.2017 (copy enclosed as Annexure–B/2 to the counter) whereby the committee for recruitment of Principal and Teachers for the OAVs was re-constituted. According to Mr. Mishra, the Page 8 of 20 meeting of the committee held on 12.04.2018, the copies of the minutes of which are enclosed as Annexure–C/2 to the counter, was presided over by the Principal Secretary to Government in S & ME Department, who is not a member of the committee as constituted. In any case, the cut-off marks fixed by the committee, i.e., 35% and above for General candidates and 30% and above for reserved category candidates is for CBT only and not for the final merit list. Even otherwise, the cut-off marks was fixed after initiation of the recruitment process of which the petitioners were in the dark. There is no bar prescribed in the advertisement to take the marks of all the three papers of CBT to decide the cut-off marks. 10. Per contra, Mr. Sandeep Parida submits that the authorities have strictly followed the modalities laid down in the advertisement, particularly under Clause-8.6 and therefore, no illegality or impropriety was committed. Mr. Parida further contends that the advertisement confers power on the authority concerned to fix cut-off marks for both CBT as well as interview. Therefore, the decision of the committee cannot be questioned on the ground that the Page 9 of 20 candidates were not aware of the same. It is further argued that the committee as constituted by the Government vide order under Annexure-B/2 had met to fix cut-off marks and the Principal Secretary was only an attendee. He being the senior most officer present, it was mentioned out of courtesy in the minutes that he had presided over the meeting. Since all the members of the committee were present, the competency of the committee cannot be questioned. Summing up his arguments, Mr. Parida submits that the petitioners having secured less than the cut-off marks fixed by the committee were rightly not called for the performance test and interview. 11. Be it noted at the outset that in so far as the petitioners in W.P.(C) No.14172 of 2018 are concerned, they were permitted to attend the performance test and
Decision
interview during pendency of the writ petition as per order dated 06.08.2018 passed in I.A.No.11867 of 2018. However, the result has not been published as yet. 12. The main grievance of the petitioners as evident from the foregoing narration is not inviting to them to appear in Page 10 of 20 the performance test and interview. Both sides have relied upon the provisions of the advertisement in support of their contentions. It would therefore be apposite to refer to the relevant clauses, namely, Clause-7 and Clause-8.6 of the advertisement, both of which are quoted herein 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. b) However, the mode of selection for all the above posts will be at the sole discretion of OAVS. c) The decision of the OVAS the mode of selection to the above posts and eligibility conditions of the applicants for interview shall be final and binding. No correspondence will be entertained in this regard. d) The Online Question Paper will be bilingual (i.e., English & Odia Languages Only). e) The candidates will be required to report at the examination centre at least 1 ½ Hours (90 minutes) before the commencement of online examination. Candidates coming late for the test will be allowed. f) Time Schedule may change depending upon for a received number of applications particular post. Page 11 of 20 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. 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 chose 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 weighted evaluation scheme shall be test 50% (Parts-II & III), Performance Test 20% and interview 30%.” final merit, the 13. According to the stand taken by the opposite parties in their counter, the petitioners were not called to attend the performance test or interview, only because they secured less than the cut-off marks in Part-II and III of CBT. Thus, in order to decide the cut-off marks, only Page 12 of 20 the marks secured by the candidates in Part-II and III of CBT were taken. Such action is sought to be justified by referring to the provision under Claus-8.6. A careful reading of the provision would reveal the following:- (i) The CBT (Online test) shall comprise of Part- I, II & III. (ii) The marks secured in Part-II and III shall be evaluated only if the candidate qualifies in Part-I. (iii) Thereafter, performance test of 20 marks will be conducted separately. Clause-7 provides that the OAVS reserves the right to decide the cut-off marks in CBT and interview separately. The question is, what should be the mode of determining the cut-off marks of CBT. In other words, what would be the implication of the expression “cut-off marks in CBT” as used in Clause-7? Page 13 of 20 As already stated, CBT comprises of Part-I, II and III. There is nothing in the advertisement to show that while fixing cut-off marks the marks secured in Part-I of the CBT shall be ignored. What has been provided under Clause-8.6 is only to the effect that the papers in Part-II and III shall be evaluated only if the candidate qualifies in Part-I. In other words, Part-I is a qualifying test for the purpose of evaluation of Part-II and III. This does not, ipso facto, mean that while determining the cut-off marks for CBT, Part-I would be left out. This would strongly militate against the expression “cut-off marks in CBT” employed in Clause-7 (a), more so as it is provided that candidates will be selected on the basis of their performance in Computer Based Test interview and performance test ‘put together’. Undoubtedly, the final merit list has to be prepared on the weighted evaluation scheme by taking performance in Part- II and III, performance test and interview in the order of 50%, 20% and 30% respectively. Thus, from the scheme of examination under Clause-8.6, the exclusion of marks of Part-I of CBT is for the purpose of preparation of final merit list but not for fixation of cut-off marks. In the meeting of Page 14 of 20 the committee held on 12.04.2018, there is nothing to indicate that the cut-off marks so fixed by it was intended to be applied only to the performance of the candidates in Part-II and III tests of CBT. As already stated, the advertisement also does not so provide. It would appear as if the authorities have misread the provision of Clause-8.6 and applied the same for the purpose of determining cut-off marks. Such being not the intention of the recruiting authority as manifest in the relevant clauses of the advertisement referred to hereinbefore, the action of the authorities in applying the cut-off marks fixed by the committee, only to Part-II and III of the CBT of the candidates cannot be justified. It is clear from the extract of the provisional combined merit list (copy enclosed as Annexure-B/2) that the marks of only Part-II and III had been taken and as the same is below the cut-off marks fixed by the committee, i.e., 35% and 30% as the case may be, the candidates were not allowed to participate in the performance test. This Court is therefore, of the considered view that the methodology adopted by the authorities in short listing candidates for attending the performance test Page 15 of 20 and interview is contrary to the provision of the advertisement and hence, cannot be sustained. 14. In the additional affidavit, the following has been stated under paragraph-10.:- “That, it is humbly submitted that to sum up, during the process of recruitment the candidates are selected on the basis of their eligibility or performance at different stages of activities. (i) While filling up of the online from, the candidate has to satisfy that he/she is eligible for the post from qualification as well as age point of view. (ii) In CBT, part-I is qualifying one to prove one’s mastery over language-English, Odia. Part-II & Part-III of CBT measures the knowledge of the applicants in current affairs and content in the related subjects. (iii) In performance test of music the candidate has to expose his/her skill or proficiency in performing music-instrumental as well as vocal. (iv) In interview, the candidate’s personality is judged. It also measures his/her ability to express he matter convincing which is a requisite for any candidate to hold a post.” 15. This Court feels to understand the rationale behind such evaluation of the candidates. It must be remembered that the post of a Music Teacher or any other performing arts cannot be compared lock, stock and barrel with the teacher of any other discipline. It goes without saying that the assessment of a person aspiring to be a Music Teacher Page 16 of 20 can only be on a composite assessment of his ability of which the performance test is an important part, because it is a test of his skill or proficiency in Music as specifically indicated under Clause (iii) of paragraph-10 of the additional affidavit referred to hereinbefore. Therefore, while evaluating candidates for Music Teacher due leverage ought to be provided for the performance test as otherwise, the very purpose of selection would be frustrated. If more importance is given to CBT, it may not bring out the best talent since weightage of as much as 50% has been given to performance in CBT, which in turn has been restricted to Part-II and III only. Of course this is for preparing the final merit list. However, by restricting the performance in CBT to only Part-II and III for the purpose of applying the cut-off marks could be contrary to the very spirit of the advertisement. To elucidate, a candidate securing high marks in Part-II and III of the CBT but faring poorly in the performance test may still be selected while a person securing less marks in the current affairs and content test, but securing high marks in the performance test may not. The authorities therefore, should have kept the above in Page 17 of 20 mind while fixing the cut-off marks, particularly in case of candidates for Music Teachers. The fact that the above procedure was actually adopted in the previous recruitment process only goes to fortify the above reasoning and at the same time belies understanding as to why the same was not adopted for the recruitment process in question. 16. Such being the finding, the question that naturally arises is, whether the entire process of selection needs to be declared invalid and/or quashed inasmuch as the same procedure was followed also in respect of 30 candidates who were called to the performance test and interview and selections have been made long since. Obviously, the persons who are finally selected and have been given appointment cannot be faulted with for any wrong procedure followed by the concerned authorities. Moreover, the petitioners also do not have any claim or grievance against them. It is also fairly admitted by learned Senior Standing Counsel that all 115 vacancies have not been filled up so far. Thus, there are sufficient number of vacancies available to be filled up against which the Page 18 of 20 petitioners, if ultimately found to be selected, can be adjusted. 17. For the foregoing reasons therefore, this Court holds that the petitioners have made out a good case for 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 considered for appointment against the existing vacancies. Page 19 of 20 (v) The whole exercise shall be completed within a period of two months from today. 18. The writ applications are disposed of accordingly. ..……..………………….. Sashikanta Mishra, Judge Orissa High Court, Cuttack, The 24th February, 2023/ B.C. Tudu, Sr.Steno Page 20 of 20